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Full text of "North Carolina Register v.14 no. 4 (8/16/1999)"

UNk ^i^'l ^ ^3^', ^ W^ ^ 7 



NORTH CAROLINA 

REGISTER 



RECEIVED 

AUG 16 1999 

KATHRINE R, EVERETT 
. LAW LIBRARY 



VOLUME 14 • ISSUE 4 • Pages 263 - 367 



August 16, 1999 



IN THIS ISSUE 

HHS - Abbreviated Notice of Temporary Rule-Making 

Voting Rights Letters 

Administration 

Auctioneers, Commission for 

Commerce 

Community Colleges 

Envirormient and Natural Resources 

General Contractors, Board of 

Health and Human Services 

Pharmacy, Board of 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on pennaneut, acid-free paper in compliance with G.S. J 25-11. J 3 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult M'ith the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



^ 



Rule Notices. Filings. Register. Deadlines. Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (919)733-2678 

424 Nonh Blount Street (919) 733-3462 FAX 

Raleigh, North Carolina 27601-2817 ' <;; 



contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



mmasich@oah. state. nc. us 
rcreech@oah. state. nc. us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

1 16 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



(919) 733-7061 
(919) 733-0640 FAX 

wplonk@osbm. state. nc. us 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)73.3-2721 
(919) 733-94 15 FAX 



Le gislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 27611 (919) 715-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Street (919) 715-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



(^ 



Tliii publication is printed on permanent . acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 4 
Pages 263 - 367 



August 16, 1999 



This issue contains documents otTiciaily filed 
through July 26, 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston. Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



IN THIS ISSUE 



1. IN ADDITION 

Health and Human Services 

Facility Services 264 

Voting Rights Letters 263 

II. RULE-MAKING AGENDA 

Environment and Natural Resources 

Environmental Management Commission . . 265 - 271 
Health Service, Commission for 265 - 271 

III. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Environmental Management Commission . . 272 

Wildlife Resources Commission 272 

Health and Human Services 
Health Services 272-273 

IV. PROPOSED RULES 
Commerce 

Banking Commission 274 - 279 

Community Colleges 

Community Colleges, Board of 304-310 

Environment and Natural Resources 

Environmental Management 287 - 304 

Health and Human Services 

Facility Services 279-287 

V. TEMPORARY RULES 
Administration 

Nonpublic Education 311-314 

Environment and Natural Resources 

Marine Fisheries 323-329 

Health and Human Resources 

Facility Services 314-319 

Medical Assistance 319-321 

Social Services 321 - 323 

VI. APPROVED RULES 330 333 

Environment and Natural Resources 

Coastal Management 

Marine Fisheries 

Wildlife Resources 
Licensing Boards 

Auctioneers, Commission for 

General Contractors, Board of 

Pharmacy. Board of 

Vn. RULES REVIEW COMMISSION 334 - 338 

Vm. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 339 - 342 

Text of Selected Decisions 

97 EHR 1026 343-346 

98 ABC 1270 347-348 

98 DAG 1770 349-350 

99 DOJ 0045 35 1 - 367 

Vim. CUMULATIVE INDEX 1-62 



Niii-th Ctiniliiui Rcfiisler is published semi-monthly for S 1 9.'i per year by the Office of Administrative Hearings. 424 North Blount .Street. Raleigh. NC 
27601 (ISSN 1.^200604) to mail at Periodicals Rates is paid at Raleigh. NC POSTMASTER: Send Address changes to the N,inh Caiolma Register. 
PO Drawer 27447. Raleieh. NC 2761 1-7447 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory: The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other nvo. subchapters and sections are optional subdivisions to be used by agencies when 
approuriatc. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


T 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


II 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


I5A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


T) 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*2I 


Occupational Licensing Boards 


Medical Examiners 


32 


TO 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Tlierapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg^ (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






\'cicrinai\ Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 






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IN ADDITION 



This Section contains public notices that are required to he published in the Register or have been approved by the Codifier 
of Rules for publication. 



U.S. Department of Justice 
Civil Rights Division 



EJ;VLO:DPB:eiTir 
DJ 166-012-3 
99-1286 
99-1622 



Voting Section 

P.O. Box 66128 

Washington. D.C. 20035-6128 



June 29. 1999 



David A. Holee. Esq. 
City Attorney 
P.O. Box 7207 
Greenville. NC 27835-7207 



Dear Mr. Holec: 



This refers to two annexations (Ordinance Nos. 99-28 and 99-56) and their designation to xoting districts of the City of 
Greenville in Pitt County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act. 42 
U.S.C. 1973c. We received your submissions on May 7 and June 17. 1999, 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the changes. See the procedures for the Administration of Section 5 (28 C.F.R. 51 .41 ) 

Sincerely. 

Elizabeth Johnson 
Chief, Voting Section 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



263 



IN ADDITION 



TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES 
ABBREVIATED NOTICE OF TEMPORARY RULE-MAKING 

DIVISION OF FACILITY SERVICES 

This is an Abbreviated Notice to inform interested persons that the agency plans to adopt temporary rules to incorporate need 
determinations and policies from the 2000 State Medical Facilities Plan ("SMFP") once it is approved by the Governor. Prior to 
his review and approval of the Plan, the Governor will receive recommendations from the State Health Coordinating Council 
("SHCC"). The SHCC will review petitions and public comments on the Draft 2000 SMPF and finalize its recommendations at 
its next scheduled meeting on Wednesday, September 29, 1999, 10:00AM - 12:00 Noon, Jane S. McKimmon Center at the corner 
of Gorman Street and Western Boulevard, Raleish, North Carolina. 



( 



264 NORTH CAROLINA REGISTER August 16, 1999 14:4 



RULE-MAKING AGENDA 



An agency may choose to publish a rule-making agenda which sen'es as a notice of rule-making proceedings if the 
agenda includes the information required in a notice of rule-making proceedings. The agency must accept comments on 
the agenda for at least 60 days from the publication date. Statutory reference: G.S. I50B-2 1.2. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 



TTiis agenda will serve as the notice of mle-making proceedings for the following rule-making bodies from August 16, 
through October 15, 1999; 



1999 



Environmental Management Commission - to rule codified in 15A NCAC 2D & 2Q; 
Commission for Health Services - to rules codified in 15A NCAC 13A & 18. 

DENR Regulatory Agenda Index - July 26, 1999 



AIR QUALITY 
APA # 

E2808 



E2809 
E2810 
E2811 

E2812 
E2823 

E2824 
E2825 
E2826 
E2827 
E2828 
E2829 
E2830 



SUBJECT 


RULE CITATION # 




Activities Exempted from Permit 


15A NCAC 2Q .0102 




Requirements 






Control of Visible Emission 


15A NCAC 2D .0521 




Control of Visible Emissions 


15A NCAC 2D 0521 




Hot Mix Asphalt Plants & Control 


15A NCAC 2D .0506. 


.0521 


of Visible Emissions 






Exclusionary Rules 


15A NCAC 2Q .0800 




Administrative Chanees for non- 


15A NCAC 2Q .0304, 


.0305, and 


Title V permits 


new rule 




Compliance Schedule 


15A NCAC 2Q .0109 




I/M Measurement & Enforcement 


15 A NCAC 2D. 1005 




Permit Content 


15A NCAC 2Q .0508 




Permit exemptions; mcinerator rules 


15A NCAC 2Q .0102, 


2D. 1200 


Acid rian permit applicability 


15A NCAC 2Q .0401 




Air Toxic definitions 


15A NCAC 2D .1 103 and 2Q .0703 


Any Credible Evidence 


new rule 





ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 

APA # SUBJECT RULE CITATION # 

E28 1 6 Design Details 1 5 A NCAC 1 8A .25 1 5 



WASTE MANAGEMENT/HAZARDOUS WASTE 
APA # SUBJECT 

E2835 Amendments to the NC Hazardous 

Waste Management Rules 



RULE CITATION # 

15A NCAC 13A .010I-.0104. .0106, .0108, 
.0110,-0112, .0113, .0118 



DENR Regulatory Agenda - July 26, 1999 

APA #: E2808 

SUBJECT: Activities Exempted from Permit Requirements 

RULE CITATION #; 15A NCAC 2Q .0102 

STATUTORY AUTHORITY: GS 143-215. 3(aM 1 ); 143-215.108; 143-215.109 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 06/1 1/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



265 



RULE-MAKING AGENDA 



GOV LEVELS AFPECTED: None 

REASON FOR ACTION : 

To allow the Director of the Division of Air Quahty to revoke the permit-exempt status for a source or activity found in 
violation of an applicable requirement. 

SCOPE/NATURE/SUMMARY : 

Rule 15A NCAC 2Q .0102, Activities Exempted from Permit Requirements, may be amended to allow the Director to 
revoke the permit-exempt status for a source or activity found in violation of an applicable requirement. The revocation 
of the permit-exempt status would require the source to be permitted. Permitting the source would facilitate bringing the 
sources into compliance and assuring that they remain in compliance with all applicable requirements. 

APA #: E2809 

SUBJECT: Control of Visible Emission 

RULE CITATION #: 15A NCAC 2D .0521 

STATUTORY AUTHORITY: GS 143-215. 2(a); 143-215. 107(a)(5) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919 )733- 1 489 

DATE INITIATED: 06/1 1/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To change the method for determining compliance with the opacity standard when a continuous opacity monitor (COM) 
is used to measure opacity. 

SCOPE/NATURE/SUMMARY : 

Rule 15A NCAC 2D .0521, Control of Visible Emissions, may be amended to revise the methodology for determining 
compliance with the opacity standard when opacity is measured with a COM. The current rule was written to measure 
opacity with visual observations by a person. The rule allows the opacity standard to be exceeded for one six-minute 
period in any hour and for four six-minute periods in any 24-hour period. This methodology may not be suited for 
measuring opacity with a COM. Also, measurements made during startup, shutdown, and malfunctions may be included 
when a COM is used to measure opacity. 

APA #: E28IO 

SUBJECT: Control of Visible Emissions 

RULE CITATION #: 1 5A NCAC 2D .052 1 

STATUTORY AUTHORITY: GS 143-215.3(1); 143-215. 107(a)(5) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 06/1 1/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To change basing the opacity standard from manufacturing date to installation date. 

SCOPE/NATURE/SUMMARY : 

Under I5A NCAC 2D .0521. Control of Visible Emissions, if a source was manufactured as of July 1. 1971, it is allowed 
an opacity of 40 percent. A source manufactured after July I, 1971, is allowed an opacity of 20 percent. Under the 
current rule, a source manufactured before July I, 1971, may be moved to another facility and retain the 40-perceiil 
standard. The amendment being considered would change basing the opacity standard from manufacture date to 
installation date. Thus, if a source that was manufactured before July 1. 1971 . was moved to a new facility, its opacity 
standard would be changed from 40 to 20 percent. 

APA #: E2X11 

SUBJECT: Hot Mix Asphalt Plants & Control of Visible Emissions 

266 NORTH CAROLINA REGISTER August 16, 1999 14:4 



RULE-MAKING AGENDA 



RULE CITATION #: I5A NCAC 2D .0506, .0521 

STATLITORY AUTHORITY: GS 143-215. 3(a); 143-215. 107(aK5) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thorn Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 06/1 1/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To lower the opacity standard for asphalt batch plants. 

SCOPE/NATURE/SUMMARY : 

Currently, the opacity standard tor most asphalt hatch plants is 20 percent, although some plants have a standard of 40 
percent. The proposed rule change being considered would lower the opacity standard to 20 percent or possibly less. 
Emissions from asphalt batch plants are controlled by bag filters. When this type of control technology is properly 
maintained and operated, there should be no visible emissions. Therefore, a lower opacity standard is justified for these 
sources. This change would require amending 15A NCAC 2D .0506. Particulates from Hot Mix Asphalt Plants, and 
possibly 15A NCAC 2D .0521, Control of Visible Emissions. 

APA #:E2812 

SUBJECT: Exclusionary Rules 

RULE CITATION #: 1 5 A NCAC 2Q .0800 

STATLTORY AUTHORITY: GS 143-215. 3(a); 143-215. 107(a)( 10); 143-215.108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thorn Allen 

DIVISION CONTACT TEL#: ( 9 1 9 )733- 1 489 

DATE INITIATED: 06/1 1/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To make all the reportmg dales of 1 5A NCAC 2Q .0800, Exclusionary Rules, the same. 

SCOPE/NATURE/SUMMARY : 

Section 15A NCAC 2Q .0800 defines six categories of facilities as being small for permitting purposes. Rules in this 
Section require an annual report to verify that the facility still qualifies for coverage under the rule. Most rules require 
the annual report to be submitted by February 15. One rule, cotton gins, requires the annual report to be submitted by 
March I . The rules would be changed to require all the annual reports to be submitted by the same date. This change 
should make tracking the report submittals easier. 

APA #:E2816 

SUBJECT: Design Details 

RULE CITATION #: 15A NCAC 18A .2515 

STATUTORY AUTHORITY: GS 130A-282 

DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 

DIVISION CONTACT: Jim Hayes 

DIVISION CONTACT TEL#: (919)715-0924 

DATE INITIATED: 06/23/1999 

DURATION OF RULE: Permanent 08/01/20(JO 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

APA #: E2823 



14:4 NORTH CAROLINA REGISTER August 16, 1999 267 



RULE-MAKING AGENDA 



SUBJECT: Administrative Changes for non-Title V permits 

RULE CITATION #: !5A NCAC 2Q .0304, .0305. and new rule 

STATUTORY AUTHORITY: GS 143-215. 3ta)(l); 143-215.108 

DIVISION/SECTION: AIR QUALITY g 

DIVISION CONTACT: Thom Allen i 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To clarify administrative amendments for the non-Title V permitting process. 

SCOPE/NATURE/SUMMARY : 

A new rule may be added to Section 15A NCAC 2Q .0300, Construction and Operation Permit, for administrative 
amendments. The Rule would define the types of changes that are administrative amendments. These changes would 
include correcting typographical errors; changing the name, address, or telephone number of any individual identified in 
the permit: changing reporting procedures requiring more frequent monitoring or reporting by the permittee; changing 
test dates or construction dates. It may also describe the administrative amendment process. Rule 15A NCAC 2D .0304. 
Applications. .0305. Application Submittal Content, and other rules may need amending. 

APA #: E2824 

SUBJECT: Compliance Schedule 

RULE CITATION #: 15A NCAC 2Q .0109 

STATLITORY AUTHORITY: GS 143-215. 3(a)( I ); 143-215.108; 143-215.109 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To revise 15A NCAC 2Q .0109, Compliance Schedule for Previously Exempted Activities to remove obsolete and 

confusing language. 

SCOPE/NATURE/SUMMARY : 

Rule 15A NCAC 2Q .0109 contains two parts. One part deals with activities for which there was a permit exemption but 
that permit exemption has been removed from the permit exemption rule. This provision contains obsolete schedules for 
submitting pennit applications for activities that have lost their permit exemption. This language needs to be replaced 
with more general language to provide a schedule for activities that may lose their permit exemption in the future. 

The second part of this rule contains a schedule for submitting air toxic permit applications for sources covered under 
maximum achievable control technology (MACT). Because of the way MACT rules are written and are being 
implemented, this provision for submitting application for air toxic emissions is often confusing and leads to contlicts. 
Therefore, this schedule needs to be removed or significantly revised. 

APA #: E2825 

SUBJECT: I/M Measurement & Enforcement 

RULE CITATION #: I5A NCAC 2D .1005 

STATUTORY AUTHORITY: GS 143-215.3(a)( 1 ); 143-215. 107(a)(3). (6), (7) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

268 NORTH CAROLINA REGISTER August 16, 1999 14:4 



RULE-MAKING AGENDA 



TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To improve and streamline the process for revising the specifications of methods and equipment for measuring 
automobile exhaust emissions. 

SCOPE/NATURE/SUMMARY : 

Rule I5A NCAC 2D .1005. Measurement and Enforcement, states that the methods and equipment for measuring the 
exhaust emissions are specified in 40 CFR 52.1770. 40 CFR 52.1770 contains Appendix G of the North Carolina State 
Implementation Plan (SlPl. Appendix G contains the methods and equipment specifications for measuring pollutants in 
motor vehicle exhaust. Thus, to change specifications requires a SIP revision, which is a long and convoluted process. 
The computer software specifications are frequently changed, and these changes need to be made quickly. To facilitate 
this process. Rule I5A NCAC 2D .1005 needs to be amended to establish a procedure that would allow the Director of 
the Division of Air Quality to approve these changes. 

APA #: E2826 

SUBJECT: Permit Content 

RULE CITATION #: 15A NCAC 2Q .0508 

STATUTORY AUTHORITY: GS 143-215. 3(a)(l ); 143-215.65; 143-215.66; 143-215. 107(a)(10);143-215. 108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To incorporate into the Title V permitting rules amendments to 40 CFR Part 70. State Operating Permit Program. 

SCOPE/NATURE/SUMMARY : " 

On October 22, 1997 EPA promulgated amendments to 40 CFR Part 70 to revise the permit content requirements for 
compliance certification. One important change is to require the certification to identify each deviation from a permit 
condition. The compliance certification must also identify excursions or exceedances of parameters set under the 
compliance assurance monitoring rules. The incorporation of these changes requires amending 15A NCAC 2Q .0508, 
Permit Content. 

APA #: E2827 

SUBJECT: Permit exemptions; incinerator rules 

RULE CITATION #: 15A NCAC 2Q .0102. 2D .1200 

STATUTORY AUTHORITY: GS 143-215.3(a)(l ); 143-215. 107(A)(4); 143-215.108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To require all incinerators not excluded from the incinerator rules to ha\e a permit. 

SCOPE/NATURE/SUMMARY : 

Requirements may be revised to disallow permit exemptions for incinerators However, incinerators not covered under 
the incinerator rules. 15A NCAC 2D .1200. Control of Emissions from Incinerators, may continue to be exempted. 



APA #: E2828 

SUBJECT: Acid rain permit applicability 



14:4 NORTH CAROLINA REGISTER August 16, 1999 269 



RULE-MAKING AGENDA 



RULE CITATION #: 15A NCAC 2Q .0401 

STATUTORY AUTHORITY: GS 143-215. 3(a)( 1 ); 143-215. 107(a)(8); 143-215.108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thorn Allen g 

DIVISION CONTACT TEL#: (919)733-1489 i 

DATE INITIATED: 07/12/1999 

DURATION OF RULE; Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED; None 

REASON FOR ACTION ; 

To amend 15A NCAC 2Q .0401. Purpose and Applicability, to change the applicability of the acid rain rules. 

SCOPE/NATURE/SUMMARY : 

The EPA has amended 40 CFR 72.6, Applicability, to change the applicability of its acid rain permit regulations. Rule 
15A NCAC 2Q .0401 needs to be amended to bring it in line with the federal rule. Most likely the lists of units covered 
and not covered under the acid rain rules will be replaced by incorporating 40 CFR Part 72.6 by reference. 

APA #: E2829 

SUBJECT; Air Toxic definitions 

RULE CITATION #: 1 5 A NCAC 2D . 1 103 and 2Q .0703 

STATUTORY AUTHORITY: GS 143-215.3(a)( 1); 143-213; 143-215.108; 143B-282 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

TYPE OF RULE; 

STAGE OF DEVELOPMENT; Draft Rule Stage 

GOV LEVELS AFFECTED; None . 

REASON FOR ACTION ; M 

To add a definition for soluble nickel compounds to the air toxics rules. 

SCOPE/NATURE/SUMMARY : 

Rules 15A NCAC 2D .1 103. Definitions, and 2Q .0703. Definitions, may be amended to add a definition of soluble 
nickel. Soluble nickel compounds are the soluble nickel salts of chloride, sulfate, and nitrate. 

APA #: E2830 

SUBJECT: Any Credible Evidence 

RULE CITATION #: New Rule 

STATUTORY AUTHORITY; GS l43-215(a)( 1 ); 143-215. 107(a)(4), (5), ( 10) 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thom Allen 

DIVISION CONTACT TEL#; (919)733-1489 

DATE INITIATED; 07/12/1999 

DURATION OF RULE: Permanent 04/01/2001 

TYPE OF RULE: 

STAGE OF DEVELOPMENT; Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION ; 

To adopt an any credible evidence rule. 

SCOPE/NATURE/SUMMARY : 

The EPA has encouraged states to adopt an any credible evidence rule. 40 CFR 51.212 states that State Implementatior. 
Plans are not to contain language that prevents the use of any credible evidence or information to determine whether a 
source would be in or out of compliance if the appropriate compliance test or procedure had been performed. Any 
credible evidence could be used for both compliance determination and compliance certification. EPA has identified at 
least one rule that needs amending to allow any credible evidence. That rule is 15A NCAC 2D .0912. General Provisions 
on Test Methods and Procedures. Two approaches could be used. One is to adopt a generic any credible evidence rule, 
which is probably the best approach. The other is to identify each rule for which there is a problem and fix it. 

270 NORTH CAROLINA REGISTER August 16, 1999 14:4 



RULE-MAKING AGENDA 



APA #: E2835 

SUBJECT: Amendments to the NC Hazardous Waste Management Rules 

RULE CITATION #: 15A NCAC I3A .0101-.0104. .0106. .0108. .01 10, .01 12, .01 13. .01 18 

STATLITORY AUTHORITY: GS. 130A-294(c), 150B-21.6 

DIVISION/SECTION: WASTE MANAGEMENT/HAZARDOUS WASTE 

DIVISION CONTACT: Brenda Rners 

DIVISION CONTACT TEL#: (919)733-4996 

DATE INITIATED: 07/2 1 / 1 999 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To eliminate the Annual Report requirements as required by Section 27.10 of House Bill 53 of the Second Extra Session 
of the 1996 North Carolina Legislature. Changes are also made to properly identify the Departincnt and definitions that 
are exempt in certain rules. 



14:4 NORTH CAROLINA REGISTER August 16, 1999 271 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-inakiiiii Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency series as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. I50B-2I.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

-K jotice of Rule-making Proceedings is hereby given by the 
I y Environmental Management Commission in accordance 
with G.S. I50B-2I.2. The agency shall subsequently publish 
in the Reaister the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 2S. Other rules may be proposed in the course of 
the rule-making process. 

Authority for the rule-making: G.S. 14^-215. I04A et seq. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0355 Other rules may he proposed in the 
course of the rule-tnaking process. 

Authority for the rule-making: G.S. 75A-3: 75A-15 

Statement of the Subject Matter: No Wake Zone 

Reason for Proposed Action: The Perquimans Counts- 
Board of Conunissitmers initiated the no-wake zone pursuant 
to G.S. 75A-15 to protect public safety in the area by 
restricting vessel speed. The Wildlife Resources Commission 
may adopt this Rule as a temporary rule pursuant to G.S. 
1 50B-2 1 . 1(al > following this abbreviated notice. 



Statement of the Subject Matter: Tlie Environmental 
Mcmagement Commission will consider adoption of rules 
regarding minimum management practices for the handling of 
solvent at dry-cleaning facilities pursuant to provisions in the 
Dn-Cleaning Solvent Cleanup Act of 1997. G.S. 143- 
2I5.IU4A et seq. 



Comment Procedures: The record will he open for receipt 
of written comments and must be delivered or mailed to the 
North Carolina Wildlife Resources Commission. 512 N. 
Salisbiuy Street. Raleigh. NC 27604-1188. 



Reason for Proposed Action: The North Carolina General 
Assetnbly enacted G.S. 143-21 5. I04A et seq., referred to as 
the "Drx-Cleaning Solvent Cleanup Act of 1997". This law 
authorizes the Environmental Management Commission to 
engage in rulemaking as necessaty to implement the drx- 
cleaning solvent cleanup program. The Division of Waste 
Management, Superfund Section, is filing notice of its intent to 
develop rules regarding minimum management practices at 
dry-cleaning facilities in accordance with the statute. 

Comment Procedures: Written comments may be submitted 
to the Division of Waste Management. Supeifund Section. 
Attention Lisa Taber, 401 Oberlin Road. Suite 150, Raleigh. 
NC 27605. 



CHAPTER 21 - HEALTH: PERSONAL HEALTH 

ly jotice of Rule-making Proceedings is hereby given by the 
ly Commission for Health Sen ices in accordance with G.S. 
I50B-21.2. The agency shall subsequently publish in the 
Register the text of the rulets) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

L'^A NCAC 211 .0102-.0103: 21J .0102-.0103. Other rules 
may he proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 130A-361 



CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

X TOtice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Resources Commission in 
accordance with G.S. I50B-21.2. The agencx shall 
subseqiienth publish in the Rei;ister the text of the rulels) it 



Statement of the Subject Matter: These Rules clarif\ and 
strengthen the criteria that foods must meet in order for meals 
to he credited for reimbursement in the Summer Food Senice 
Program (SFSP) and the Child and Adult Care Food Program 
(CACFP) in North Carolina. 

Reason for Proposed Action: The meal requirements in the 
federal regulations for the Summer Food Service Program 
(SFSP) and the Child and Adult Care Food Program 



272 



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August 16, 1999 



14:4 



RULE-MAKING PROCEEDINGS 



(CACFP) are general in nature, and do not automatically 
ensure that nutritious meals are sensed. The North Carolina 
Department of Health and Human Services (DHHS). Division 
of Public Health is setting forth these rules to ensure that 
meals claimed for reimbursement in the SFSP and the CACFP 
reflect the National Health and Safety Peiformance Standards 
for Out-of-Home Child Care Programs and the United States 
Department of Agriculture's Dietary Guidelines for 
Americans. Implementation of these rules will help meet the 
nutrition goals and standards of state initiatives for health, 
including the Department of Health and Human Services' 
Healthy Child Care North Carolina initiative and its 1999- 
2003 North Carolina Plan to Prevent Heart Disease and 
Stroke. Through this improved public health policy, more 
nutritious meals will support the development and 
maintenance of healthful eating habits among North 
Carolina 's children and adults in these programs, thus 
combating the increasingly prevalent nutrition-related 
problems of childhood obesity, anemia, heart disease, and 
diabetes. 

Comment Procedures: Copies of the proposed rules and 
information packages may be obtained by contacting Special 
Nutrition Programs at (919) 715-1923. Written commons 
max be submitted to Arnette Cowan. Nutrition Sen-ices 
Branch. 1914 Mail Senice Center. Raleigh. NC 27699-1914. 



14:4 NORTH CAROLINA REGISTER August 16, 1999 273 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. I50B-2I.2. 



TITLE 4 - DEPARTMENT OF COMMERCE 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Office of the Commissioner of Banks; State 
Banking Commission intends to adopt the rules cited as 4 
NCAC 3L .0I01-.0102. .0201-.0202, .0301-.0303, .0401- 
,0405. .050J-.0502. .0601 -,0604. .0701-.0702. Notice of Rule- 
making Proceedings was published in the Register on June 15, 
1999. 

Proposed Effective Date: July 1, 2000 

A Public Hearing will be conducted at 10:00 a.m. on 
September 3, 1999 at the Commissioner of Banks Hearing 
Room, 702 Oberlin Road, Suite 400, Raleigh, NC. 

Reason for Proposed Action: There have been questions 
and concerns as to the proper operation of Article 22 of 
Chapter 53. especially as to post-dated and delayed-deposit 
checks, and there is a need for rules to provide guidance to 
industry participants and protection to consumers. 

Comment Procedures: Comments should he fonvarded to 
Otis M. Meacham. Deputy Commissioner, Office of the 
Commissioner of Banks, PO Box 10709, Raleigh, NC 27605- 
0709. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five mil Htm 
dollars ($5,000,0001 in a 12-month period. 

CHAPTER 3 - BANKING COMMISSION 

SUBCHAPTER 3L - CHECK-CASHING BUSINESSES 

SECTION .0100 - ADMINISTRATIVE 

.0101 DEFINITIONS 

(a) As used in this Suhchapler 3L. unless the context or the 
lanuuaee oT Article 22 of G.S. 53 indicate a contrary intention. 
the loiiciwini; dclmitions shall apply: 

( 1 ) "AtTiliate" shall mean any person who directly or 
indirectly through one or more inlerinediaries. 
controls, or is controlled bi\ or js m common control 
with another person. 

(2) "Affiliate of the licensee" within the meaning of 
G.S. 53-28 1(e) includes a perse)n related to the 
licensee by common ownership or control, a person 
with whcim the licensee has any financial interest, or 



ill 

15] 



16J 



ili 



m 



121 
(10) 



Oii 
ill! 

3) 



any employee or agent of the licensee. 
"Any one maker" shall mean any single signatory on 
a personal checking account. 

"Branch location" shall mean any location, including 
a mobile unit, but not the principal place of 
business, where the licensee holds itself out to the 
public as engaging in a check-cashing business. 
"Business day" shall mean any day other than a 
week-end or holiday, or any day during which banks 
and similar financial institulicins in North Carolina 
are open to the public for the regular conduct of 
business. 

"Check" shall mean a drafi (other than a draft 
payable upon presentation ot document such as 
securities) payable on demand and drawn on a bank. 
The term "check" may also include any cashier's 
check or teller's check or other check, draft, or 
money order, but shall not include travelers checks 
or foreign denomination payment instruments. 
"Conspicuously posted" shall mean placed in plain 
public \iew in such a location and in such a way and 
of such form and si/.e and typeface that any person 
seeking the services (jf a licensee could clearly and 
easily see and read the contents oi the posted notice. 
"Controlling person" shall mean any person who 
owns or holds with the power to vine 1 0V( or more 
of the equity securities of an applicant or licensee, or 
who has the power to direct the management and 
policy of the licensee. 

"Draft" shall mean a written order to pay money 
signed by one person, the drawer who signs the 
document, upon another person, the drawee. 
"Liquid assets" shall mean cash, bank deposit 
accounts, and money market accounts or similar 
property owned h\ the applicant or licensee, plus 
undeposited checks cashed by a licensee, less any 
returned checks doubtful of collection and cash 
remittances due others. 

"Location" shall mean any place of business where 
check-cashing activity is conducted. 
"Mobile unit" shall mean a \ehicle or other movable 
means from which the business of check cashing is 
conducted. 
"Personal check" as the term is used in G.S. 53 



14) 



281(a) shall mean a check drawn on the checking 
account of a natural person and bearing the 
signature of the customer who signs the written 
agreement pursuant to G.S. 53-28 1(c). 
"Principal" shall mean any person who controls, 
directly or indirectly through one or more 



274 



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August 16, 1999 



14:4 



PROPOSED RULES 



intermediaries, alone or in concert with others, a 
\{)'7( or greater interest in a partnership, company, 
association or corporation: the owner of a sole 
proprietorship; or any natural person acting with 
apparent authority for or on behalf of an owner, 
officer, member, or director of a licensee; any 
natural person who directs the performance of other 
employees as manager of a branch of any licensee. 

(15) "Principal place of business" shall mean the location 
where the licensee holds itself out to the public as 
engaging jji a check cashing business and which the 
licensee has declared to the Commissioner to be its 
main site of business operations. 

( 16) "Receipt" shall mean a written record of the check- 
cashing transaction. 

(17) "Renew or extend" shall mean to postpone the 
effective due date or to modify or alter or replace an 
instrument previously given so as to c ontinue U 
beyond its ongmally stated due date, whether or not 
another fee is paid to the licensee. 

(b) Unless a term is defined herein or in G.S. 53. Article 22. 
that term shall have the meaning given jl, H' any, by Article 3 
"Negotiable Instruments" of Chapter 25. North Carolina 



Uniform Commercial Code. 



Authonn G.S. 53-92: 53-93: 53-288. 



.0102 



FILINGS 



Anv application for a license, or anv report, application for 
annual renewal, amendment to application, renewal notice or 
other dtKument which is required by law or rule to be filed 
with the Commissioner shall be addressed as follows: 

Office of the Commissioner of Banks 
4309 Mail Service Center 
Raleigh. North Carolina 27699-4309 
or. if not mailed, then delivered to: 

Office of the Commissioner of Banks 
702 Oberiin Road. Suite 400 
Raleigh. North Carolina 27605 

Aurlwrin- G.S. 53-92: 53-93: 53-288. 

SECTION .0200 - APPLICATION 

.0201 APPLICATION FOR LICENSE 

(a) Anv person intending to engage jji a check-cashing 
business pursuant to G.S. 53. Article 22 shall first be licensed 
by the Commissioner. An application shall be made on a form 
obtained from the Commissioner, and the completed 
application shall be filed pursuant to Rule .0102 of' this 
Subchapter. 

(b) The application for license as a check-cashing business 
shall include a financial statement that is sufficient to show 
liuuid assets ol fifty thousand dollars (S50.000) as required by 
G.S. 53-279(a). 



(c) The application for license as a check-cashing business 
shall further include: 

( 1 ) the business address in North Carolina, mailing 
address, business telephone number, facsimile 
number, and name ot the supervisor or manager for 
the principal place of business and for each branch 
location; 
the address where books and records for the 



12] 
ill 
lii 
15] 



business will be kept; 

name, title, and business telephone number and 

facsimile number for the application contact person; 

the applicant's federal employer identification 

number; 

a declaration as to whether the applicant's business 

will be c(<nducted as a sole proprietorship, a 

partnership, a limited liability company, or a 

coiporation. 

(d) Each applicant shall provide a signed statement 
authorizing the Commissioner to run a credit report on the 
applicant and on each owner, partner, director, principal, 
controlling person thereof. 

(e) Each applicant shall provide a signed statement making 
full disclosure to the Commissioner concerning the following: 

( 1 ) Anv criminal proceedinijs pending against ot 
criminal convictions entered against the applicant. 
its partners, directors, principal officers ot 
controlling persons; 

(2) .^ny civil proceedings pending against or civil 
judgments entered against the applicant, its partners, 
directors, principal officers or contr()lling persons 
which inMilve fraud or dishonesty ; 

(3) Any cisil judgments entered against the applicant, 
its partners, directors, principal officers ot 
controlling pcrs(ms during the past 10 years which 
have remained partially or wholly unpaid; 

(4) Any of the following proceedings involving the 
applicant, its partners, directors, principal officers or 
controlling persons: bankruptcy, assignment for the 
benefit of creditors, receivership. conser\atorship or 
similar proceeding; 

(5) .Any prcK'cedings brought by a state or federal 
administrative agency against the applicant, ib. 
partners, directors, principal officers or controlling 
persons; 

(6) .Any judgments entered by state or federal 
administrati\e agency against the applicant, its 
partners. direct(irs. principal officers, ot ccmlrolling 
persons which invohe fraud, dishonesty . ot that 
reflect on the applicants' character and fitness to 
command the ccinfidence of the public; 

(7) A description of the business experience, current 
business activities and education of the applicant. Us 
partners, directors, principal officers and controlling 
persons. 

(f) The application shall be in writing and shall be verified 
by the oath of the applicant. 



14:4 



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August 16, 1999 



275 



PROPOSED RULES 



(g) In addition to the documents and information described 
in this Rule, the Commissioner may require such additional 
information as he may deem necessary or helpful in order to 
perform the investigation required by required by G.S. 53-278 
and to make the findings required by G.S. 53-279. 

(h) Incomplete application files may be closed and may be 
deemed denied without prejudice when the applicant has not 
submitted information requested by the Commissioner within 
30 days of request. 

Autlwrin- G.S. 53-92: 53-93: 53-276: 53-278: 53-279: 53-288. 

.0202 FEES 

(a) The initial fees required by G.S. 53-278(c) shall be 
submitted with the application for license and shall be made 
payable to the Commissioner. 

(b) The annual renewal fees required by G.S. 53-278(d) 
shall be submitted with the request for renewal of the license 
and shall be made payable to the Commissioner. 

Authority G.S. 53-92: 53-93: 53-278: 53-288. 

SECTION .0300 - LICENSING 

.0301 ISSUANCE 

Upon receipt of a completed application and payment of the 
inyestigation fee required by G.S. 53-278 the Commissioner 
shall inyestigate the applican t pursuant to G.S. 53-278 and 
G.S. 53-279. If the Commissioner finds that the applicant has 
met the provisions of G.S. 53-279. the Commissioner shall 
issue the applicant a license for use at the declared location. 

Authority- G.S. 53-92: 53-93: 53-278: 53-279: 53-288. 

.0302 NONTRANSFERABILITY OF LICENSE 

(a) A license granted hereunder shall be neither transferable 
nor assignable. 

(b) The circumstances under which the Commissioner shall 
deem a change in the licensee's organizational structure to 
constitute a transfer or assignment of the license shall include. 
but not be limited to, the following: 



( 1 ) If the licensee is a corporation or limited liability 
company: 

(A) A change in ownership of 50% or more of the 
licensee's stock; 

(B) The conversion of the corporation or 
company into a general or limited partnership 
or sole proprietorship; 

(2) 11 the licensee is a general or limited partnership: 

(A) A change in one of the licensee's general 
partners; 

(B) The conversion of the general partnership 
into a limited partnership, corporation or sole 
proprietorship; 

(C) The conversion of the limited partnership into 
a general partnership, corporation or sole 
prctprietorship; 



(3) If the licensee is a sole proprietor: 

(A) The conversion of the sole proprietorship into 
a general or limited partnership or 
corporation; 

(B) The sale or assignment of all of the assets of 
the licensee'sbusiness to another person. 

(c) Upon a change in organization as set forth in Paragraph 
(b) of this Rule, the licensee's license shall become void and 
the licensee shall surrender its licensee to the Commissioner 
within 10 days of such change. If the entity which results 
from the change in the licensee's organizational structure 
desires and intends to engage in a check-cashing business in 
this State, it shall apply for a licensee pursuant to Section 
.0200 of this Subchapter. 

Authority- G.S. 53-92: 53-93: 53-276: 53-278: 53-288. 

.0303 ANNUAL RENEWAL OF LICENSE 

On or before September 1 of each year, a licensee may 
renew its license by filing with the Commissioner an 
application for license renewal on a fonn available from the 
Commissioner, along with payment of renewal fees required 
under G.S. 53-278(d). Absent such renewal each year, the 
license shall expire and become void on September 30 without 
further action by the Commissioner. 

Authority- G.S. 53-92: 53-93: 53-276: 53-278: 53-288. 

SECTION .0400 - OPERATIONS 

.0401 POSTING OF LICENSE OR BRANCH 
CERTIFICATE 

A licensee shall obtain a branch location certificate for each 
location other than its principal place of business at which its 
business of cashing checks is conducted. The license or 
certificate must be conspicuously posted. 

Authoritx G.S 53-92: 53-93: 53-276: 53-278: 53-288. 

.0402 SURRENDER OF LICENSE 

A licensee shall notify the Commissioner in writing of its 
decision to cease operations as a check-cashing business in 
this State within seven days of such decision. A licensee shall 
surrender its license and branch certificates. If any, to the 
Commissioner no later than 30 days after it has voluntarily 
ceased operations in this State and within such shorter time as 
the Commissioner may order if operations end involuntarily. 

Authority G.S. 53-92: 53-93: 53-276: 53-288. 

.0403 POSTING OF FEES 

la} The notice of fees required by OS, 53-280(c) shall be 
clear, legible, and in bold and blocked letters and numbers not 
less than one inch in height. The information shall be posted 
in a conspicuous location in the unobstructed view of the 
public within the check casher'spremises. Check cashers who 



276 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



offer delayed deposit transactions pursuant to G.S. 53-281 
shall also display an example of a delayed deposit check 
transaction with a face amount of one hundred dollars 
($100.00) along with the maximum fee allowed to be charged, 
which fee shall be expressed both as a dollar amount and as an 
effective annual percentage rate (APR). The display shall 
illustrate identical delayed deposit transactions of 7. 14. and 30 
days. 

(b) A licensee shall file with the Commissioner on paper 8'/2 
x ii inches a scaled duplicate of the notice required by G.S. 
53-280(c) and Paragrat^h (a) of this Rule. 

Authority G.S. 53-92: 53-93: 53-280: 53-281: 53-288. 

.0404 CASH-OUT TRANSACTIONS 

(a) A delayed deposit customer may tender cash in return 
for a delayed deposit check on or before the date k is due for 
deposit. This shall be a decision of the customer and not the 
licensee. 

(b) A licensee may not require by contract or otherwise that 
a delayed deposit customer cash-out a delayed deposit check. 

(c) The licensee shall provide to the delayed-deposit 
customer a receipt for the funds tendered in return for a 
delayed deposit check. The receipt shall show: 

( 1 ) The name of the customer; 
The name of the licensee; 



01 

ill 

Mi 

(5) 



The location of the cash-out transaction; 
The date and time of the cash-out; 
The amount of cash received. 



(d) If the customer declines to cash-out a delayed deposit 
check before U is due for deposit, then the licensee may 
deposit the check or otherwise make immediate presentment of 
the check. 

Aitthorm- G.S. 53-92: 53-93: 53-282: 53-282: 53-288. 

.0405 LIMITATION ON DELAYED DEPOSIT 
CHECK CASHING 

(a) A licensee may not at any time have a delayed deposit 
check of more than three hundred dollars ($300.00) 
outstanding for any one maker or customer. Any single check. 
or combination of checks, iji excess of that amount shall 
subject the licensee to administrative enforcement action as 
well as civil penalties and recovery of excess fees for violation 
of Article 22. 

(b) A licensee may have multiple delayed deposit checks 
from a single maker so long as those items do not exceed at 
any time an aggregate amount of three hundred dollars 
($300.00). 

(c) With regard to a joint account on which there is more 
than one authorized signatory, a licensee may enter delayed 
deposit contracts and hold delayed deposit checks from any 
owner or signatory on the joint account so long as the items 
from each single maker do not exceed at any time an aggregate 
amciunt ot' three hundred dollars ($300.00) for that maker. 

(d) A licensee may not enter into transactions in excess of 



the limitations specified in this Rule through the use of a 
combination or cooperative arrangement with any other 
licensee or affiliate. 

Authorit}- G.S. 53-92: 53-93: 53-281: 53-288. 

SECTION .0500 - BOOKS AND RECORDS; 
EXAMINATIONS 

.0501 BOOKS AND RECORDS 

(a) Each check-cashing business licensed by the 
Commissioner of Banks shall record aH transactions of 
receipts and disbursements pertaining to checks cashed, 
including postdated or delayed deposit items. All entries shall 
be made as of the exact date the transactions occur. A licensee 
shall maintain books and accounting records which shall 
include, at a minimum: 

( 1 ) a daily transaction journal, or equivalent record. 

which shall show the customer's name for each 

transaction; 



01 

ill 

111 
111 

.161 



the written receipt required by G.S. 53-282(b); 

the written customer agreement required by G.S. 53- 

281(c); 

delayed checks currently held for deposit; 

receipts issued for customer cash-outs of delayed 

deposit transactions; 

a hist(>rv card, or its equivalent, for each delayed 

deposit check cashing customer which shows: 

(A) the customer's name; 

the date and amount of each such check in 

order; 






the date each check was deposited or cashed 

or returned to the customer upon his tender of 

cash; and 
(D) the method of payment (whether by deposit 

or by a tender of cash from the customer); 

and 
(7) the bank statements of the licensee. If the statements 
are not maintained on the premises of the licensee, 
they must be made immediately available upon 
request by the Office of the Commissioner of 
Banks. 

(b) These records shall be maintained at each business 
location and shall be readily available to the Commissioner iM' 
Banks or Ins designee for inspection or examination for a 
period of not less than three years from the date of final entry. 

(c) No books or records of the licensee required hereunder 
shall show any account or rcllect any transaction other than 



those directly related to the check-cashing business within the 
provisions of the Check-Cashing Businesses Act. 

(d) Where a licensee [s engaged in the business of handling 
postdated or delayed deposit checks, as authorized by G.S. 
53-281. the licensee. e\en though h may not be required to 
maintain completely separate books and records on such 
transactions, shall nonetheless be ca pable of extracting from 
its books and records information about the frequency of 



14:4 



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August 16, 1999 



277 



PROPOSED RULES 



repeat use by individuals of postdated or delayed deposit 
checks. 

(el Books and records retained by a licensee which arise 
rr(n'n or relate to a prior accountinti period may be maintained 
in the form of magnetic tape, magnetic disk, or other form of 
computer, electronic or microfilm media available for 
examination on the basis of computer printed reproduction, 
video display, or other medium so long as any books and 
records kept in such manner are convertible into clearly 
legible, tangible documents within 72 hours of request of the 
Commissioner. The time for such conversion may be 
extended it' the Commissioner determines that the burden to 
the licensee of such immediate ct)nversion exceeds the benefit 
to the Coininissioner and the public. 

Autlwritx G.S. 53-92: 53-93: 53-282: 53-282: 53-288. 



Commissioner. 

(c) For the purposes of this Rule, the term "material" shall 
inean any information which would be likely to influence the 



granting, revocation, or expiration of a license hereunder. The 
term "material" shall include, but not be limited to: 

( 1 ) changes in the licensee'scorporate officers, partners. 
or business structure: 

(2) changes in the address of the licensee's main or 
branch otTices and any names under which the 
licensee operates; or 

(3) changes which would render untrue, inaccurate, or 
misleading any of the disclosures made by the 
licensee in its application pursuant to Rule .0201 of 
this Subchapter. 

Autlwrin G.S. 53-92: 53-93: 53-278: 53-283: 53-284: 53-288. 



such 



.0502 EXAMINATIONS; INVESTIGATIONS 

(a) The Commissioner of Banks may make 

examination of the books, records, business locations, and 
operations of any licensee and at such times as may seem 
necessary or desirable to the Commissioner or his designee. 
Such examinations may he with or without advance notice to 
the licensee. 

(b) In addition to examinations authorized by G.S. 53- 
278(b) or G.S. 53-282(c). the Commissioner may request from 
licensees hereunder such reports and at such times as to him 
shall be necessary or advisable lor the purpose of determining 
the general results of operations under G.S. 53. Article 22. 
The Commissioner or his designee may also examine or 
in\'estigate a licensee when the Commissioner has reasonable 
grounds to believe that a registrant has violate(i any law or 
regulation oi' this State, the Federal government or any agency 
thereof. 



ic] If a licensee fails to pay the costs of examination or 
investigation to the Commissuiner with in a reasonable time as 
required by G.S. 53-282(c). then the Commissioner may 
proceed to remedies contemplated by G.S. 53-2X4 et sect. 

Authontx G.S. 53-92: 53-93: 53-278: 53-282: 53-284: 53-288. 

SECTION .0600 - REPORTING AND NOTIFICATION 
REQUIREMENTS 

.0601 AMENDMENTS TO INFORMATION ON FILE 
WITH THE COMMISSIONER 

(a) A licensee shall notify the Coinmissioner within 30 days 
of any material change to inlormation which \l submitted to 
the Commissioner, whether prosided m its initial application. 
in its request for annual renewal, or in any other report or 
information otherwise pnnided to the Commissioner. 

(b) Notification shall be accomplished by letter or by 
revision or modification of the appropriate portions of the 
application (whether initial oi renewal). If the licensee elects 
to re\ise or modi I v its initial application or annual renewal 
statement, it shall do so on pages obtained from the 



.0602 EXPANSION OR RELOCATION 

A licensee shall notify the Commissioner of the opening of 
any new branch office or tfie relocation of its principal place of 
business or of any branch office at least 20 days prior to the 
effective date of such change. The notification shall be on a 
form obtained from the Commissioner. The notification shall 
provide an explanation of llie reasons for such change and 
shall be accompanied by a certificate fee for the new branch 
certificate in the amount of fifty dollars ($50.00). The 
Commissioner shall issue a revised branch certificate upon his 
receipt of the required notification, the satislaclorv 
explanation, and the filing fee, and upon surrender of the 
licensee's inaccurate certificate. 

Aiirhorin G.S. 53-92: 53-93: 53-276: 53-278: 53-279: 53- 
283: 53-288 

.0603 IMPAIRMENT OF FINANCIAL 
REQUIREMENTS 

A licensee shall immediately notify the Commissi(>ner in 
writing if, at any time, U fails to meet the minimum liquid 
asset requirement oi G.S. 53-279(a). 

Aiitluirln G.S. 53-92: 53-93: 53-279: 53-288. 

.0604 REPORT OF INFORMATION TO 

COMMISSIONER FOR THE GENERAL 
ASSEMBLY 

Where a licensee is engaged m the business of handling 
postdated or delayed deposit checks, as authorized by G.S. 53- 



28i. the licensee shall. 



time to time at the 



Commissioner's request, submit such summary inlormation oi' 
Its business as tfie Commissioner may require so to allow the 
Commissioner, with the assistance of participants in this 
business, to compile the report required by the General 
Assembly in Section 2 of Session Law 1997-391. 

Aiithonn G.S. 53-92: 53-93: 53-279: 53-288. 



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PROPOSED RULES 



SECTION .0700 ■ PROHIBITED ACTS AND 
PRACTICES; ENFORCEMENT 

.0701 PROHIBITED CONDUCT AND PRACTICES 

For the purposes of G.S. 53-283(5). it shall be deemed an 
unfair, deceptive, or fraudulent practice to provide check 
cashing services or accept a postdated or delayed deposit 
check under G.S. 53-281 when the licensee knows or has 
reason to know that the customer is under any legal or other 



disability or is conducting busmess with any deficiency of 
understanding of spoken or written English, and h would be 
apparent to a reasonable person that the customer is relying 
exclusively upon the licensee because of such disability or 
language deficiency. 



Certificate of Need program. 

Comment Procedures: Anyone wishing to comment on these 
proposed rules should contact Jackie Sheppard, APA 
Coordinator, Division of Facility Sen-ices. 701 Barbour Dr. 
Raleigh. NC 27603. (919) 733-2342. All written comments 
must be received no later than October 4. 1999. 

Fiscal Note: These Rules do not affect the e.xpenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 3 - FACILITY SERVICES 



12] 
13] 

14] 



Authority G.S. 53-92: 53-93; 53-278: 53-283: 53-288. 

.0702 ENFORCEMENT ACTIONS 

The grounds upon which the Commissioner may either 
revoke or suspend a licensee's license shall include, but shall 
not be limited to. the following: 

(1) The making ot" any false statement in an initial or 
renewal application for license, rf the false statement 
would have been grounds for the denial of the 
application; or 

The making of any false statement on any form or 
document requested by the Commissioner; or 
The conviction ol any crime which would have a 
bearing upon the fitness or ability of the licensee to 
conduct its business; or 

The commission of any action which involves 
dishonesty, fraud or misrepresentation. This 
Subparagraph shall not be construed to apply to 
bonafide errors. 

Authority- G.S. 53-92: 53-93: 53-278: 53-284: 53-288. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 1 50B-21 .2 
that the Division of Facility Sen-ices intends to amend 
rules cited as 10 NCAC 3R .1613. .1615. .1713 - .1715. .1912 
- .1914. .2113. .2713. .2715. and .4203. Notice of Rule- 
making Proceedings was published in the Register on January 
15. 1999. 

Proposed Effective Date: July 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on October 
4. 1999 at the Council Building. Room 201. 701 Barbour 
Drive. Raleigh. NC. 

H Reason for Proposed Action: To adopt permanent rules to 
'■ replace the temporary version of rules applicable to the 



SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGULATIONS 

SECTION .1600 - CRITERIA AND STANDARDS FOR 

CARDIAC CATHETERIZATION EQUIPMENT AND 

CARDIAC ANGIOPLASTY EQUIPMENT 

.1613 DEFINITIONS 

The following definitions shall apply to all rules in this 
Section: 

( 1 ) "Approved" means the equipment was not in 
operation prior to the beginning of the review period 
and had been issued a certificate of need or had been 
acquired prior to March 18. 1993 in accordance with 
1993N.C.Sess. Lawsc. 7. s. 12. 

(2) "Capacity" of an item of cardiac catheterization 
equipment or cardiac angioplasty equipment means 
1270 1370 diagnostic-equivalent procedures per 
year. One therapeutic cardiac catheterization 
procedure is valued at 1.67 1.75 
diagnostic-equivalent procedures. One cardiac 
catheterization procedure performed on a patient age 
14 or under is valued at two diagnostic-equivalent 
procedures. All other procedures are valued at one 
diagnostic-equivalent procedure. 

(3) "Cardiac angioplasty equipment" shall have the 
same meaning as defined in G.S. 131E-176(2e). 

(4) "Cardiac catheterization equipment" shall have the 
same meaning as defined in G.S. I31E-I76(2f). 

(5) "Cardiac catheterization procedure", for the purpose 
of determining utilization in a certificate of need 
review, means a single episode of diagnostic or 
therapeutic catheterization which occurs during one 
visit to a cardiac catheterization room, whereby a 
flexible tube is inserted into the patient's body and 
advanced into the heart chambers to perform a 
hemodynamic or angiographic examination or 
therapeutic intervention of the left or right heart 
chamber, or coronary arteries. A cardiac 
catheterization procedure does not include a simple 
right heart catheterization for monitoring purposes 



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279 



PROPOSED RULES 



as might be done in an electrophysiology laboratory, 
pulmonary angiography procedure, cardiac pacing 
through a right electrode catheter, temporary 
pacemaker insertion, or procedures performed in 
dedicated angiography or electrophysiology rooms. 

(6) "Cardiac catheterization room" means a room or a 
mobile unit in which there is cardiac catheterization 
or cardiac angioplasty equipment for the 
performance of cardiac catheterization procedures. 
Dedicated angiography rooms and 
electrophysiology rooms are not cardiac 
catheterization rooms. 

(7) "Cardiac catheterization service area" means a 
geographical area defined by the applicant, which 
has boundaries that are not farther than 90 road 
miles from the facility, if the facility has a 
comprehensive cardiac services program; and not 
farther than 45 road miles from the facility if the 
facility performs only diagnostic cardiac 
catheterization procedures: except that the cardiac 
catheterization service area of an academic medical 
center teaching hospital designated in 10 NCAC 3R 
shall not be limited to 90 road miles. 

(8) "Cardiac catheterization services" means the 
provision of diagnostic cardiac catheterization 
procedures or therapeutic cardiac catheterization 
procedures performed utilizing cardiac 
catheterization equipment or cardiac angioplasty 
equipment in a cardiac catheterization room. 

(9) "Comprehensive cardiac services program" means a 
cardiac services program which provides the full 
range of clinical services associated with the 
treatment of cardiovascular disease including 
community outreach, emergency treatment of 
cardiovascular illnesses, non-invasive diagnostic 
imaging mt)dalilies, diagnostic and therapeutic 
cardiac catheterization procedures, open heart 
surgery and cardiac rehabilitation services. 
Community outreach and cardiac rehabilitation 
services shall be provided by the applicant or 
through arrangements with other agencies and 
facilities located in the same city. All other 
components of a comprehensive cardiac services 
program shall be provided within a single facility. 

(10) "Diagnostic cardiac catheterization procedure", for 
the purpose of determining utilization in a certificate 
of need review, means a cardiac catheterization 
procedure performed for the purpose of detecting 
and identifying defects or diseases in the coronary 
arteries or veins of the heart, or abnormalities in the 
heart structure, but not the pulmonary artery. 

(11) "Electrophysiology procedure" means a diagnostic 
or therapeutic procedure performed to study the 
electrical conduction activity of the heart and 
cliaraclcrization of atrial ventricular arrhythmias. 

(12) "Existing" means the equipment was in operation 
prior to the beginning of the re\ iew period. 



(13) "High-risk patient" means a person with reduced life 
expectancy because of left main or multi-vessel 
coronary artery disease, often with impaired left 
ventricular function and with other characteristics as 
referenced in the American College of 
Cardiology/American Heart Association Guidelines 
for Cardiac Catheterization and Cardiac 
Catheterization Laboratories (1991 ) report. 

(14) "Mobile equipment" means cardiac angioplasty 
equipment or cardiac catheterization equipment and 
transporting equipment which is moved to provide 
services at two or more host facilities. 

(15) "Percutaneous transluminal coronary angioplasty 
(PTCA)" is one type of therapeutic cardiac 
catheterization procedure used to treat coronary 
artery disease in which a balloon-tipped catheter is 
placed in the diseased artery and then inflated to 
compress the plaque blocking the artery. 

( 16) "Primary cardiac catheterization service area" means 
a geographical area defined by the applicant, which 
has boundaries that are not farther than 45 road 
miles from the facility, if the facility has a 
comprehensive cardiac services program; and not 
farther than 23 road miles from the facility if the 
facility performs only diagnostic cardiac 
catheterization procedures; except that the primary 
cardiac catheterization service area of an academic 
iTiedical center teaching hospital designated in 10 
NCAC 3R shall not be limited to 45 road miles. 

(17) "Therapeutic cardiac catherization procedure", for 
the purpose of determining utilization in a certificate 
of need review, means a cardiac catheterization 
procedure performed for the purpose of treating or 
resolving certain anatomical or physiological 
conditions which have been determined to exist in 
the heart or coronary arteries or veins of the heart, 
but not the pulmonary artery. 

AiithorifxG.S. I31E-177IJ): L^IE-18.l 

.1615 REQUIRED PERFORMANCE STANDARDS 

(a) The An applicant shall demonsirate that the project is 
capable of meeting the following standards: 

( 1 ) each proposed item of cardiac catheterization 
equipment or cardiac angioplasty equipment, 
including mobile equipment, shall be utilized at an 
annual rate of at least 60 percent of capacity, 
measured during the fourth quarter of the third year 
following completion of the project; 

(2) if the applicant proposes to perform therapeutic 
cardiac catheterization procedures, each of the 
applicant's therapeutic cardiac catheterization teams 
shall be performing at an annual rate of at least 100 
therapeutic cardiac catheterization procedures, 
during the third year of iiperation following 
completion of the project; 

(3) if the applicant proposes to perform diagnosti c 



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tli 



M 



cardiac catheterization procedures, each diagnostic 
cardiac catheterization team shall be perlorming at 
an annual rate ol at least 200 diagnostic-equivalent 
cardiac catheterization procedures by the end of the 
third year following; completion of the project; 
ffHat least 50 percent of the projected cardiac 
catheterization procedures shall be performed on 
patients residing within the primary cardiac 
catheterization service area; area. 
An applicant proposing to acquire mobile cardiac 



catheterization or mobile cardiac angioplasty equipment shall: 

^ H( I ) demonstrate that each existing item of cardiac 
catheterization equipment and cardiac angioplasty 
equipment in each facility w hi ch has a primary 
cardiac cathe t eriza t ion s e r v i ce a re a that overlaps 
equipment, excluding mobile equipment, located in 
the proposed primary cardiac catheterization service 
area of each host facility shall have been operated at 
a level of at least 80 percent of capacity during the 
12 month period rellected in the most recent 
licensure form on tile with the Division of Facility 
Services; 

(51(2) demonstrate that the utilization of each existing or 
approved item of cardiac catheterization equipment 
and cardiac angioplasty e quipme n t, equipment, 
excluding mobile equipment, located in each facility 
which has a primary cardiac catheterization service 
area that overlaps the proposed primary cardiac 
catheterization service area of each host facility shall 
not be expected to fall below 60 percent of capacity 
due to the acquisition of the proposed cardiac 
catheterization, cardiac angioplasty, or mobile 
equipment; 
t&) if the applicant p r oposes to p er for m diagnostic 
c a r d i ac catheter i za t ion procedu r es, each diag n ostic 
ca r diac ca t hete ri za t ion t eam shall he pe r fo r ming at 
a n a nn ual r at e of at least 200 diag n ost ic -e q u iv alent 
ca r diac ca t h e te r izatio n p r oc e du re s by th e end of the 
t hi r d year followi n g compl e tion of the project; 

(t^(3) demonstrate that each item of existing mobile 
equipment operating in the proposed primary 
cardiac catheterization service area oi' each host 
facility shall have been performing at least an 
average of four diagnostic-equivalent cardiac 
catheterization procedures per day per site in the 
proposed cardiac catheterization service area in the 
12 month period preceding the submittal of the 
application; 

tR)(4) demonstrate that each item of existing or approved 
mobile equipment to be operating in the proposed 
primary cardiac catheterization service area of each 
host facility shall be performing at least an average 
of four diagnostic-equivalent cardiac catheterization 
procedures per day per site in the proposed cardiac 
catheterization service area in the applicants third 
year of operation; and 



(5) provide documentation of aj] assumptions and data 

used in the devek^pment of the projections required 

in this Rule. 

(c) An applicant proposing to acquire cardiac 

catheterization or cardiac angioplasty equipment that is not 

mobile cardiac catheterization equipment shall: 

( 1 ) demonstrate that each of its existing items of cardiac 
catheterization and cardiac angioplasty equipment, 
except mobile equipment, located m the proposed 
cardiac catheterization service area operated at a 
level of at least S()'7f of capacity during the 12 
month period reflected in the most recent licensure 
renewal application form on tile with the Division 
of Facility Services; 

(2) demonstrate that each of its existing items of cardiac 
catheterization equipment or cardiac angioplasty 
equipment, except mobile equipment, shall be 
utilized at an annual rate of at least 60 percent of 
capacity, measured during the fourth quarter of the 
third year following completion of the project; and 

(3) provide documentation of aJJ assumptions and data 
used in the development of the projections required 
in this Rule. 

tb1(d) If the applicant proposes to perform cardiac 
catheterization procedures on patients age 14 and under, the 
applicant shall demonstrate that it meets the following 
additional criteria: 

( 1 ) the facility has the capability to perform diagnostic 
and therapeutic cardiac catheterization procedures 
and open heart surgery services on patients age 14 
and under: 

(2) the proposed project shall be performing at an 
annual rate of at least 100 cardiac catheterization 
procedures on patients age 14 or under during the 
fourth quarter of the third year following initiation 
of the proposed cardiac catheterization procedures 
for patients age 14 and under. 

tcl An — a pp lican t — shafl — p r ovide docume n tation of all 

assumptions — and data used in the development of the 
projections r equired in th i s Rule. 

AuthontxG.S. 131E-J77il): lJIIE-183. 

SECTION .1700 - CRITERIA AND STANDARDS FOR 

OPEN-HEART SURGERY SERVICES AND 

HEART-LUNG BYPASS MACHINES 

.1713 DEFINITIONS 

The following definitions shall apply to all rules in this 
Section: 

( 1 ) "Capacity" of an op e n h e a r t su r gery room a heart- 
lung bypass machine means 400 adult-equivalent 
open heart surgical piDcedures per year. One open 
heart surgical procedure on persons age 14 and 
under is valued at two adult open heart surgical 
procedures. For purposes of determining capacity. 



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281 



PROPOSED RULES 



one open heart surgical procedure is defined to be 
one visit or trip by a patient to the open iieart 
surgery an operating room for an open heart 
operation. 

(2) "Cardiac Surgical Intensive Care Unit" means a 
distinct intensive care unit as defined in 10 NCAC 
3R .1213(2) and which is for exclusive use by post- 
surgical open heart patients. 

(3) "Heart-lung bypass machine" shall have the same 
meaning as defined in G.S. 131E-176( 10a). 

(4) "Open heart surgery service area" means a 
geographical area defined by the applicant, which 
has boundaries that are not farther than 90 road 
miles from the facility, except that the open heart 
surgery service area of an academic medical center 
teaching hospital designated in 10 NCAC 3R .3050 
shall not be limited to 90 road miles. 

(3) "Open heart surgery services" shall have the same 
meaning as defined in G.S. 13 IE- 176(1 8b). 

(6) "Open heart surgical procedures" means highly 
specialized surgical procedures which: 

(A) utilize a heart-lung bypass machine (the 
"pump") to perform extra-corporeal 
circulation and oxygenation during surgery; 

(B) are designed to correct congenital and 
acquired cardiac and coronary disease; and 

(C) are identified by Medicare Diagnostic Related 
Group ("DRG") numbers 104, 105, 106, 107, 
and 108. 

(7^ "Open heart surgery room" means an operating 

r oom p r imarily used to pe r form open heart su r gical 
procedures, as reported on the most current hospi t al 
licensure application. 






. al l of the 



open 



"O p e n hea r t s u r ge r y p r og r a m " m eans , 
heart surgery rooms operated i n one hosp i tal. 
(9)"Primary open heart surgery service area" means 
a geographical area defined by the applicant, which 
has boundaries that are not farther than 45 road 
miles from the facility, except that the primary open 
heart surgery service area of an academic medical 
center teaching hospital designated to 10 NCAC 3R 
.3050 shall not be limited to 45 road iniles. 



Aiitlwrity G.S. I .^1 E-177{ 1 ): L^IE-183. 

.1714 INFORMATION REQUIRED OF APPLICANT 

(a) An applicant that proposes to add an open heart surgery 
room or to acquire a heart-lung bypass machine shall use the 
acute care facility/medical equipment application form. 

(b) The applicant shall also provide the following additional 
information: 

( 1 ) the — projected — number — of — ope n — heart — su r g i cal 
proced ur es to be completed i n each o p en hea r t 
surgery room and the projected number of open 
heart surgical procedures to be performed on each 
heart-lung bypass machine owned bv or operated jn 
the facility for each of the first 12 calendar quarters 



following completion of the proposed project, 
including the methodology and assumptions used to 
make these projections; 

(2) the projected number of cardiac catheterization 
procedures to be completed in the facility for each 
of the first 12 calendar quarters following 
completion of the proposed project, including the 
methodology and assumptions used for these 
projections; 

(3) the applicant's experience in treating cardiovascular 
patients at the facility during the past 12 months, 
including: 

(A) the number of patients receiving stress tests; 

(B) the number of patients receiving intravenous 
thrombolytic therapies; 

(C) the number of patients presenting in the 
Emergency Room or admitted to the hospital 
with suspected or diagnosed acute myocardial 
infarction; 

(D) the number of cardiac catheterization 
procedures performed, by type of procedure; 

(E) the number of patients referred to other 
facilities for cardiac catheterization or open 
heart surgical procedures, by type of 
procedure; 

(F) the number of patients referred to the 
applicant s facility for cardiac catheterization 
or open heart surgical procedures, by type of 
procedure; 

(G) the number of open heart surgery procedures 
performed by type of procedure during the 
twelve month period reflected in the most 
recent licensure form on file with the 
Division of Facility Services; 

(4) the number of patients from the proposed open heart 
surgery service area who are projected to receive 
open heart surgical procedures by patient's county of 
residence in each of the first 12 quarters of 
operation including the methodology and 
assumptions used to make the projections; 

(5) the number of patients from the proposed primary 
open heart surgery service area who are projected to 
receive open heart surgical procedures by patient's 
county of residence in each of the first 12 quarters, 
including the methodology and assumptions used to 
make these projections; 

(6) the projected patient referral sources; 

(7) evidence of the applicant's capability to 
communicate efficiently with emergency 
transportation agencies and with all hospitals 
serving the proposed service area; 

(8) the number and composition of open heart surgical 
teams available to the applicant; 

(9) a brief description of the applicant's in-service 
training or continuing education programs for open 
heart surgical team members; and 

(10) evidence of the applicant's capability to perform 



282 



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PROPOSED RULES 



both cardiac catheterization and open heart surgical 
procedures 24 hours per day, 7 days per week. 

Aiahorin G.S. I3IE-177I 1 ): 131E-183. 

.1715 REQUIRED PERFORMANCE STANDARDS 

The apphcant shall demonstrate that the proposed project is 
capable of meeting the following standards: 

t+l each open hear t surgery roo m shall b e utilized at an 

a nn ual ra t e of a t l e as t 50 p e rce n t of capacity, 
measured dur i ng — the tw e lfth — quaiter following 
completion of t he p r o j e ct ; 

ff^(l) the applicant shall perform at least 4 diagnostic 
catheterizations per open heart surgical procedure 
during each quarter; 

tfH(2) a an applicant's existinti and new or additional 
heart-lung bypass mach i ne machines shall be 
utilized at an annual rate of 200 open heart surgical 
procedures per year per machine , measured during 
the twelfth quarter followmg completion of the 
project; project, with the exception that this standard 
may he waived for a second machine exclusively 
used for backup and owned by any hospital that is 
proposing to dcvek)p new open heart suri^ery 
services and acquired its heart-lung bypass 
machines prior to March 18. 199.^. but was unable 
to use such machines because it did not have a 
certificate of need authorizing it to pro\'ide open 
heart surgery scr\ices; 

(4)(3) at least 50 percent of the projected open heart 
surgical procedures shall be performed on patients 
residing within the primary open heart surgery 
service area; 

t5) each existing open hea r t su r gery p rogram in each 

facility wh i ch has a p ri mary op en heart surgery 
service area that overlaps the p r oposed primary 
open heart surgery se r vice area ope r at ed at a level of 
a t least 80 percent of capa ci ty dur i ng the 12 month 
period rellecled in the most r ecent licensure form on 
file with the Division of Facil i ty S er vic e s ; 

t6l the — utilization — of existing — open — heart — snrgcry 

programs whose p ri mary open hea r t su r gery service 
area overlaps the proposed prima r y ope n hea r t 
surgery service area is not e xpect e d to fall below 50 
percent of capaci t y due to t he i n sl i lulion of the new 
or expanded open heart surge r y p rogra m . 

t7l(4) the applicant's projected ulili/iilion and proposed 
staffing patterns are such that each open heart 
surgical team shall perform at an annual rate of at 
least 150 open heart surgical procedures by the end 
of the third year following completion of the 
project; 

f8-)(5) the applicant shall document the assumptions and 
provide data supporting the methodology used to 
make these projections; and 

t^(6) heart-lung bypass machines that have been acquired 



for non-surgical use, or for non-heart surgical 
procedure use. and that are dedicated for services 
that are not related to the open heart surgery 
program, services, shall not be utilized in the 
performance of open heart surgical procedures. 

Aiirhorin G.S. 1 .^IE-I77( 1 }: 13IE-183(h). 

SECTION .1900 - CRITERIA AND STANDARDS FOR 
RADIATION THERAPY EQUIPMENT 

.1912 DEFINITIONS 

These definitions shall apply to all rules in this Section: 

( 1 ) "Approved linear accelerator" means a linear 
accelerator which was not operational prior to the 
beginning of the review period but which had been 
issued a certificate of need or had been acquired 
prior to March 18. 1993 in accordance with 1993 
N.C. Sess. Laws c. 7. s. 12. 

(2) "Complex Radiation treatment" is equal to 2 1.25 
ESTVs and means: treatment on three or more sites 
on the body; use of special techniques such as 
tangential fields with wedges, rotational or arc 
techniques; or use of custom blocking. 

(3) "Equivalent Simple Treatment Visit [ESTV]" means 
one basic unit of radiation therapy which normally 
requires up to 15 minutes for the uncomplicated set- 
up and treatment of a patient on a modern 
megavoltage teletherapy unit including the time 
necessary for portal filming. 

(4) "Existing linear accelerator" means a linear 
accelerator in operation prior to the beginning of the 
review periiid. 

(5) "Intermediate Radiation treatment" means treatment 
on two separate sites on the body, three or more 
fields to a single treatment site or use of multiple 
blocking and is equal to 2 1.10 ESTVs. 

(6) "Linear accelerator" means MRT equipment which 
is used to deliver a beam of electrons or photons in 
the treattnenl of cancer patients. 

(7) "Linear accelerator service area" means a 
ge og r a p hical area, defined b y the applica n t, i n 
which a l inear accelerator provides ser\ ' ices and in 
w h i c h n o l e ss t han 12().(K)() pe rson s reside, single or 
multi-C(>unlv area as used in the dcNclopment of the 
need determination [n the applicable State Medical 
Facilities Plan. 

(8) "Megavoltage unit" means MRT equipment which 
provides a form of teletherapy that involves the 
delivery of energy greater than, or equivalent to. one 
million volts by the emission of x-rays, gamma rays, 
electrons, or other radiation. 

(9) "Megavoltage radiation therapy (MRT)" means the 
use of ionizing radiation in excess of one million 
electron volts in the treatment of cancer. 

(10) "MRT equipment" means a machine or energy 



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PROPOSED RULES 



(11) 



(12) 



(13) 



(14) 



(15) 



(16) 



source used to provide megavoltage radiation 

therapy including linear accelerators and other 

particle accelerators. 

"Radiation therapy equipment" means medical 

equipment which is used to provide radiation 

therapy services. 

"Radiation therapy services" means those services 

which involve the delivery of precisely controlled 

and monitored doses of radiation to a well defined 

volume of tumor bearing tissue within a patient. 

Radiation may be delivered to the tumor region by 

the use of radioactive implants or by beams of 

ionizing radiation or it may be delivered to the 

tumor region systemically. 

"Radiation therapy service area" means the 



geograph 



t-hich radiatio n therapy services 



i nic area m wnich raaiation tne r apy service 
are proposed to be provided by the applicant, a 
single or multi-county area as used jji the 
development of the need determination in the 
applicable State Medical Facilities Plan. 
"Simple Radiation treatment" means treatment on a 
single site on the body, single treatment field or 
parallel opposed fields with no more than simple 
blocks and is equal to 1 ESTV. 
"Simulator" means a machine that precisely 
reproduces the geometric relationships of the MRT 
equipment to the patient. 

"Special technique" means radiation therapy 
treatments thai may require increased time for each 
patient visit including: 

(a) total body irradiation (photons or electrons) 
which equals 4.0 ESTVs; 

(b) hemi-body irradiation which equals 2.0 
ESTVs; 

(c) intraoperative radiation therapy which equals 
10.0 ESTVs; 

(d) particle radiation therapy which equals 2.0 
ESTVs; 

(e) dynamic conformational radiation therapy 
with moving gantry, collimators or couch 
which equals 1.5 ESTVs; 

(f) limb salvage irradiation at lengthened SSD 
which equals 2:6 LO ESTV; 

(g) additional field check radiographs which 
equals :05 ^ ESTV; and 

(h) stereotactic radiosurgery treatment 
management which equals 6:6 31) ESTVs. 



Antlwrin- G.S. I3JE-]77(J): 131E-183. 

.1913 INFORMATION REQUIRED OF APPLICANT 

(a) An applicant proposing to acquire radiation therapy 
equipment shall use the Acute Care Facility/Medical 
Equipment application form. 

(b) An applicant proposing to acquire radiation therapy 
equipment shall also provide the following additional 
information: 



Hi a desc r iption of the boundaries of the proposed 

radiation t herapy serv i ce area or the proposed linear 
accelerator service area if the applicant proposes to 
acqui r e a l i near accelerator; 

ift} a list of the existing radiation therapy equipment in 

the proposed radiation therapy service area or lineai ' 
accelerator service area; 

fjld ) a list of all the radiation therapy equipment to be 
acquired and documentation of the capabilities and 
capacities of each item of equipment; 

Hi(2) documentation of the purchase price and fair market 
value of each piece of radiation therapy equipment, 
each simulator, and any other related equipment 
proposed to be acquired; 

t5)(3) the projected number of patient treatments by 
county and by simple, intermediate and complex 
treatments to be performed on each piece of 
radiation therapy equipment for each of the first 
eight calendar quarters following the completion of 
the proposed project and documentation of all 
assumptions by which utilization is projected; 

t^(4) documentation that the proposed radiation therapy 
equipment shall be operational at least seven hours 
per day, five days a week; 

(?)(5) documentation that no more than one simulator is 
available for every two linear accelerators in the 
applicant's facility, except that an applicant that has 
only one linear accelerator may have one simulator; 

f&1(6) documentation that the services shall be offered in a 
physical environment that conforms to the 
requirements of federal, state, and local regulatory 
bodies; and 

t^(7) the projected number of patients that will be treated 
for cure and the number of patients that will be 
treated for palliation on each linear accelerator on an 
annual basis. 

Authoriu- G.S. 131E-177(1): 131E-183. 

.1914 REQUIRED PERFORMANCE STANDARDS 

(a) An applicant proposing to acquire a linear accelerator 
shall demonstrate that each of the following standards shall be 
met; 

(1 ) each an applicant's existing linear accelerator in the 
pr oposed service area served at least 250 patients or 
provided 6,500 ESTV treatments in the twelve 
months prior to the date the application was 
submitted; 

(2) each proposed new linear accelerator shall be 
utilized at an annual rate of 250 patients or 6.500 
ESTV treatments during the third year of operation 
of the new equipment; and 

(3) each an applicant's existing and approved linear 
accelerator shall be projected to be utilized at an 
annual rate of 250 patients or 6.500 ESTV 
treatments during the third year of operation of the 
new equipment. 



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(b) A linear accelerator shall not be held to the standards in 
Paragraph (a) of this Rule if the applicant provides 
documentation that the linear accelerator has been or shall be 
used exclusively for clinical research and teaching. 

(c) An applicant proposing to acquire radiation therapy 
equipment other than a linear accelerator shall provide the 
following information: 

(1) the number of patients that are projected to receive 
treatment from the proposed radiation therapy 
equipment, classified by type of equipment, 
diagnosis, treatment procedure, and county of 
residence; and 

(2) the maximum number and type of procedures that 
the proposed equipment is capable of performing. 

(d) The applicant shall document all assumptions and 
provide data supporting the methodology used to determine 
projected utilization as required in this Rule. 

Aulliorin G.S. L^ IE- 177(1). 

SECTION .2100 - CRITERIA AND STANDARDS FOR 
AMBULATORY SURGICAL SERVICES 

.2113 DEFINITIONS 

The following definitions shall apply to all rules in this 
Section: 

"Ambulatory surgical case" means an individual 
who receives one or more ambulatory surgical 
procedures in an ambulatory surgical operating 
room during a single operative encounter. 
"Ambulatory surgical service area" means a single 
or multi-county area as used in the development of 
ie NCAC 3R .3030. the ambulatory surgical facility 
need determination jji the applicable State Medical 
Facilities Plan. 

surgical 



(1) 



(2) 



(3) 



"Ambulatory surgical services" means those 
surgical services provided to patients as part of an 
ambulatory surgical program within a licensed 
ambulatory surgical facility or a general acute care 
hospital licensed under G.S. 1 3 1 E. Article 5. Part A. 

(4) "Ambulatory surgical facility" means a facility as 
defined in G.S. 13IE-I76( la). 

(5) "Ambulatory surgical operating room" means a 
dedicated or shared operating room in a licensed 
ambulatory surgical facility, or a general acute care 
hospital licensed under G.S. 1 3 1 E, Article 5, Part A. 
that is fully equipped to perform surgical procedures 
and is constructed to meet the specifications and 
standards, including fire and life safety code 
requirements, appropriate to the type of facility as 
utilized by the Construction Section of the Division 
of Facility Services. Ambulatory surgical operating 
rooms exclude operating rooms dedicated for the 
performance of inpatient surgical procedures, cast 
rooms, procedures rooms that do not meet operating 
room specifications, suture rooms, YAG laser 



rooms, and cystoscopy and endoscopy procedure 
rooms that do not meet the specifications of an 
operating room. 

(6) "Ambulatory surgical program" means a program as 
defined in G.S. 131E-176(lb). 

(7) "Ambulatory surgical procedure" means a surgical 
procedure performed in a surgical operating room 
which requires local, regional or general anesthesia 
and a period of post-operative observation of less 
than 24 hours. Ambulatory surgical procedures 
exclude those procedures which are generally 
performed more than 50 percent of the time in a 
physician's office. 

(8) "Existing ambulatory surgical operating rooms" 
means those ambulatory surgical operating rooms in 
ambulatory surgical facilities and hospitals which 
were reported in the License Application for 
Ambulatory Surgical Facilities and Programs and in 
Part III of Hospital Licensure Renewal Application 
Form submitted to the Licensure Section of the 
Division of Facility Services and which were 
licensed and certified prior to the beginning of the 
review period. 

(9) "Approved ambulatory surgical operating rooms" 
means those ambulatory surgical operating rooms 
that were approved for a certificate of need by the 
Certificate of Need Section prior to the date on 
which the applicant's proposed project was 
submitted to the Agency but that have not been 
licensed and certified. The term also means those 
operating rooms which the Certificate of Need 
Section determined were not subject to certificate of 
need review and which were under construction 
prior to the dale the applicant's proposal was 
submitted to the Agency. 

(10) "Dedicated ambulatory surgical operating room" 
means an ambulatory surgical operating room used 
solely for the performance of ambulatory surgical 
procedures. 

(11) "Multispecially ambulatory surgical program" 
means a program as defined in G.S. 131E-176(15a). 

(12) "Shared surgical operating room" means an 
ambulatory surgical operating room that is used for 
the performance of both ambulatory and inpatient 
surgical procedures. 

(13) "Specialty area" means an area of medical practice 
in which there is an approved medical specialty 
certificate issued by a member board of the 
American Board of Medical Specialties and 
includes, but is not limited to the following: 
gynecology, otolaryngology, plastic surgery, general 
surgery, ophthalmology, urology, orthopedics, and 
oral surgery. 

(14) "Specially ambulatory surgical program" means a 
program as defined in G.S. 131E-176(24c). 

(13) "Practical utilization" is 4.3 surgical cases per day 



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285 



PROPOSED RULES 



for a dedicated ambulatory surgical operating room 
and 3.5 surgical cases per day for a shared surgical 
operating room. 

Authority G.S. 131E-177: J3JE-J83(b). 

SECTION .2700 - CRITERIA AND STANDARDS FOR 
MAGNETIC RESONANCE IMAGING SCANNER 

.2713 DEFINITIONS 

The following definitions shall apply to all rules in this 
Section: 

( 1 ) "Approved MRI scanner" means an MRI scanner 
which was not t)perational prior to the beginning of 
the review period but which had been issued a 
certificate of need or had been acquired prior to 
March 18, 1993 in accordance with 1993 N.C. Sess. 
Laws c. 7. s. 12. 

(2) "Existing MRI scanner" means an MRI scanner in 
operation prior to the beginning of the review 
period. 

(3) "Magnetic Resonance Imaging" (MRI) means a 
non-invasive diagnostic modality in which 
electronic equipment is used to create tomographic 
images of body structure. Tlie MRI scanner 
exposes the target area to nonionizing magnetic 
energy and radio frequency fields, focusing on the 
nuclei of atoms such as hydrogen in the body tissue. 
Response of selected nuclei to this stimulus is 
translated into images for evaluation by the 
physician. 

(4) "Magnetic resonance imaging scanner" (MRI 
Scanner) is defined in G.S. I31E-176{ I4e). 

(5) "Mobile MRI scanner" means an MRI scanner and 
transporting equipinent which is moved to provide 
services at two or more host facilities. 

(6) "MRI procedure" means a single discrete MRI study 
of one patient. 

(7) "MRI service area" means t he geographic area 
defined by the applica n t, a single county or multi- 
county area as used m the development of the need 
determination in the State Medical Facilities Plan. 

(8) "MRI study" means one or more scans relatiye to a 
single diagnosis or symptom. 

AinhorityG.S. 131E-177(h: I31E-I83(h). 

.11\S REQUIRED PERFORMANCE STANDARDS 

(a) An applicant proposing to acquire a inobilc 
magnetic resonance imaging (MRI) scanner, inc l udmg a 
mob i l e MRI scan n ci. shall: 

(I ) demonstrate that all existing MRI scanners, except 
mobile MRI — scanners, except those moved to 
provide services at in ore than one site, operating in 
the proposed MRI service area in which the 
proposed MRI scanner will be located performed at 
least 2.032 MRI procedures in the last year; 



(2) project annual utilization in the third year of 
operation of at least 2,032 MRI procedures per year, 
for each proposed MRI scanner or mobile MRI 
scanner to be operated by the applicant in the 
proposed MRI service area in which the proposed 
MRI scanner will be located; 

(3) demonstrate that all of the existing MRI sc ann e r s 
scanners, except mobile, operating in the proposed 
MRI service area shall be performing at least 2,032 
MRI procedures per year in the applicant's third 
year of operation; 

(4) demonstrate that all of the approved MRI scanners 
scanners, except mobile, in the proposed MRI 
service area shall be performing at least 2,032 MRI 
procedures per year in the applicants third year of 
operation; 

(5) demonstrate that all existing mobile MRI scanners 
operating in the proposed MRI service area 
performed at least an average of eight procedures 
per day per site in the proposed MRI service area in 
the last year and shall be performing at least an 
average of eight procedures per day per site in the 
proposed MRI service area in the applicants third 
year of operation; 

(6) demonstrate that all approved mobile MRI scanners 
to be operating in the proposed MRI service area 
shall be performing at least an average of eight 
procedures per day per site in the proposed MRI 
service area in the applicant's third year of 
operation; and 

(7) document the assumptions and provide data 
supporting the methodology used for each 
projection required in this Rule. 

(b) An applicant proposing to acquire a magnetic rescmance 
imaging (MRI) scanner that is not a mobile MRI scanner shall: 

( 1 ) demonstrate that its existing MRI scanners, except 
mobile MRI scanners, operating in the proposed 
MRI ser\'ice area in which the proposed MRI 
scanner will be located performed at least 2,032 
MRI procedures in the hist year; 

(2) project annual utilization m the third year of 
operation oi at least 2,032 MRI procedures per year, 
for each MRI scanner or mobile MRI scanner to be 
operated by the applicant [n the proposed MRI 
service area m which the proposed equipment v\ill 
be located; and 

(3) document the assumptions and provide data 
supporting the methodology used for each 
projection required in this Rule. 

Authority G.S. I31E-I77il): 13IE-I83{h). 

SECTION .4200 - CRITERIA AND STANDARDS FOR 

HOSPICES. HOSPICE INPATIENT FACILITIES, AND 

HOSPICE RESIDENTIAL CARE FACILITIES 

.4203 REQUIRED PERFORMANCE STANDARDS 



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PROPOSED RULES 



(a) An applicant proposing to develop hospice inpatient 
facility beds or hospice residential care facility beds shall 
demonstrate that: 

( 1 ) the average occupancy rate of the licensed beds in 
the facility is projected to be at least 50% for the last 
six months of the first operating year following 
completion of the project; 

(2) the average occupancy rate for the licensed beds in 
the facility is projected to be at least 65% for the 
second operating year following completion of the 
project; and 

(3) if the application is submitted to address the need 
for a hospice residential care facility or hospice 
inpatient facility for a contiguous grouping of 
counties, each existing facility which is located in 
the hospice service area and which has licensed 
beds of the type proposed by the applicant attained 
an occupancy rate of at least 65% for the 12 month 
period reported on that facility's most recent 
Licensure Renewal Application Form. 

(b) An applicant proposing to add beds to an existing 
hospice inpatient facility or hospice residential care facility 
shall document that the average occupancy of the licensed 
hospice inpatient and hospice residential care facility beds in 
its existing facility was at least 65% for the nine months 
immediately preceding the submittal of the proposal. 

(c) An applicant proposing to develop a hospice shall 
demonstrate that no less than 80% of the total number of days 
of hospice care furnished to Medicaid and Medicare patients 
will be provided in the patient "s residence in accordance with 
42 CFR 418.302(f)(2). 

Aiithonn G.S. 131E-177(n. 



Rule. The Committee consisted of 23 members representing 
specific organizations with interest ranging from 
environmental protection, local government, development, 
industry and federal and state regulator}- agencies. The 
Committee's role was to recommend modifications to the 
Neuse Buffer Rule (NBR) as adopted in 15A NCAC 2B .0233 
by the Environmental Management Commission. The intent of 
this process is to protect and enhance the water quality of the 
Neuse River while not imposing an undue burden on the 
regulated public. House Bill 1402 established how the rule 
was to be implemented on a temporai-y basis, created a 
stakeholder committee, established a requirement to allow for 
alternatives to maintaining the buffer through a compensatory 
mitigation program, established a Riparian Buffer Mitigation 
Fund and program, and established a requirement for the 
Environmental Management Commission (EMC) to adopt 
rules to provide for delegation of the program to interested 
local governments. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this rulemaking to provide 
written comments. We encourage comments on the draft 
rules. Written comments may be submitted to Lin Xu, DENR, 
Division of Water Quality, Planning Branch, PO Box 29535, 
Raleigh. NC 27626-0535. Questions may be directed to Lin 
Xuatl919) 733-5083. e.xt. 357. or lin_xii@h20.enr. state. nc.us. 
The comment period will end on October 15, 1999. 

Fiscal Note: 15A NCAC 2B .0233 affects the expenditures or 
revenues of local government funds and has a substantial 
economic impact of at least five million dollars ($5,000,000) 
in a 12-month period. This rule does not affect the 
distribution of State funds subject to the Executive Budget Act, 
Article 1 of Chapter 143. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Environmental Management Commission intends 
to adopt the rules cited as 15 NCAC 2B .0233. .0242. Notice 
of Rule-making Proceedings was published in the Register on 
June 15. 1999. 



Fiscal Note: 75 NCAC 2B .0242 does not affect the 
expenditure or revenues of local government funds, 
distribution of State funds subject to the Executive Budget Act. 
Article 1 of Chapter 143 and does not have a substantial 
economic impact of at least five million dollars ($5,000,000) 
in a 12-month period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



Proposed Effective Date: August /, 2000 

A Public Hearing will he conducted at 7:00 p.m. on the 
following dates and locations: September 14. 1999 at the 
State Highway Building Auditorium. IIS. Wilmingtcm Street. 
Raleigh. NC: September 16, 1999 at the Wayne Community 
College. 3000 Wayne Memorial Drive. Goldsboro. NC: 
September 21 . 1999 at the Craven Count}- Agricultural Center. 
300 Industrial Drive. New Beni. NC. 

Reason for Proposed Action: House Bill 1402 established 
the Stakeholder Ad\isory Committee for the Neuse Buffer 



SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0200 - CLASSIFICATIONS AND WATER 

QUALITY STANDARDS APPLICABLE TO SURFACE 

WATERS AND WETLANDS IN NORTH CAROLINA 

.0233 NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: PROTECTION AND 

MAINTENANCE OF RIPARIAN BUFFERS 

The follow i ng is the ma n ag e m en t strategy for maintaining 



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287 



PROPOSED RULES 



and prot e cting riparian areas in the Neus e Rive r Ba sin: 

(+) Riparian ar e as shall he protected and maintain e d i n 
accordanc e with this Rule on all sides of s ur face 
waters — rn — the — Ne u s e — R ive r — Ba si n — ( in termitte n t 
streams, — perenni al — streams. — l ak e s, — ponds; — and 
estuari e s) as indicat e d on the most recen t v er sions of 
Uni t ed Sla t es G e ological Survey 1 : 24,()0() scale (7.5 
minute quad r angle) topographic maps or o t h e r site- 
sp e c i fic evidence. Tl i is Rule only applies t o ripar i an 
ar e as where forest vegetation is establish e d in Zone 
I [as de s c ri bed in Sub-Item (.'^Xa) of t his R ule ] as of 
July 22, 1997. For e st veg et a t io n , as d ef i n ed in 15A 
N CAC 2B .()2()2, of any width i n Zo ne 1 must be 
prot e c t ed a n d m a i ntained in accordance with this 
Rul e . This Ru l e does not establish n e w buffers in 
riparian areas. — Exceptions t o the requir e m e n t s of 
t his Rul e fo r r ip arian a re as are d e sc ri b e d i n S u b- 
It e m s (2 ) (a)-(h) of this Rul e . — Main t enanc e of the 
r iparian a r eas shall be such that, to the maximum 
extent possible, sheet flow of su r fac e water is 
achieved. — This Rul e specifies re qu irem ents t hat 
shall b e implemented in riparian areas to ensure that 
the pollutant removal functio n s of th e riparian area 
are protected a n d m aintained. 
fH Th e following waterbod i es and land uses are exempt 
fro m th e ripar i an area protect i on requirements : 
(^ D i tches and man m ad e co n veya n c e s o t he r 

than m odified n a t u ral s tr e am s; 
ttr) Areas — mapped — as — intermittent — streams, 
perennial streams, lak e s, po n ds, o r e s tu ari es 
o n the m ost re c e n t versions of United States 
Geological Survey 1 : 24,000 scale (7.5 minute 
quad r angle) — to p og r a p hic — maps — where — no 
p e r e nn ial wale r body. i nlc rm ittent waterbody. 
lake, pond or estuary actually ex i sts on the 
g r ound: 
fr) P onds a n d lakes c r eated for animal watering. 
ir rigation, or other ag r icultu r al uses that are 
not part of a n atu r al d r a i nage way that is 
classif i ed m accordance wi t h 15A NCAC 2D 



tdl Water dependent structures as define d in 15A 
NCAC 2D .0202, provided that they are 
located, designed, constructed a n d maintained 
to p r ovide maximum n ut ri e n t r emoval, to 
have the l e ast adve r se effects on aquatic life 
a n d h ab i tat a n d to p r otect water quality: 

tel Th e following uses may be al l owed where no 

practical — alternative — e x ists. A — tack — of 

pract i ca l — alternat i ves — may — be — shown — by 
demonstrating that, co n side ri ng t he potential 
for a reduction — rn — size, configuration — or 
de n sity of the p r oposed act i vity a n d — att 
alte rn ativ e designs, the basic pr oject purpose 
cannot — be — practically — acco mp lished — m — a 
man n e r which would avo i d or result i n less 
advers e i m pact to surlace wat e rs. Also, these 



s tru c t u res — shaff — be — l ocated, — designed, 

c o n s tr ucted, and maintained to have minimal 

distu rb anc e , to provide maximum nu trien t 

rem o v al a n d e rosion protect i on, to have tli e 

least adv er se e f fects on aquatic life and 

habitat, and to protect water quality to the 

maximu m ext e nt prac t ical through the use of 

b est management prac t ices. 

til Road — crossings, — railroad — crossings, 

bridges, airpo r t facilities, a n d utility 

crossings may be allowed if conditions 

specified in Sub-Item (2)(e) of this 

Rule are m e t. 

(rr) Stor m water management facilities and 

ponds. — and — utility — construction — and 

maintenance cor r idors fo r ut il i ties such 

as wate r , sewe r o r gas, m a y be allowe d 

i n Zo n e 2 of t h e rip a ri an area as long 

as the conditions specified in Sub-Item 

(2)(e) of this Rule are met and they are 

located at lea s t 30 f ee t from the top o t 

ban k — or — mean — high — wate r — line: 

Additional — requirements — for — util i ty 

co n s tr ucti on and mainte n ance corridors 

are listed in Sub-Item (2)(f) of this 

Kuie. 

tf) A — corridor — for — the — construction — and 

mai n te n ance n l ut i l i ty l ine s, such as wate r . 

sewer or gas. ( in cludi n g access r oads a n d 

stockpiling of mater i als! may run parallel to 



the strea m a n d may b e located within Zone 2 
of the riparia n area, as lo n g as no p r actical 
alternative exists and they are l ocated at least 
30 f e et f r om the to p of bank or mean high 
water line and best m a n agement p r ac t ices a r c 
installed to minimize runoff a n d maximiz e 
water qual i ty p r otectio n to the maximum 
extent pract i ca b l e . — Permanent, maintai n ed 
access corridors shall b e res tr icted to the 
mi n imum width p r actica b le and shall not 
e x c eed 10 feet in width except at manhole 
locations. A 10 fee t by 10 feet pe r pendicu htr 
vehicle tu r naround is allowed p r ovid e d they 
ar e spaced at least 500 feet apart alo n g the 
riparian a r ea. 
tgl Stream restoration pr o j ects, scientific studies. 
stream — gauging. — water — wells, — passive 
re c r eation fac i l i t i es such as boardwalks, tr ails, 
pathways. — h i sto r ic — preservation — and 
archaeological act i vi t ies a re allowed p r ovided 
that they are located i n Zo n e 2 and are at least 
30 feet from the top of bank or mean high 
wate r line a n d are des i g n ed, constructed and 
m ai n tained to provide the maximum nutrient 
removal and e rosion protection, to have the 
least adve r se effec t s o n — aquat i c — life and 
habitat, and to protect wate r quality to the 



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14:4 



PROPOSED RULES 



maximum extent practical through the use of 
b e st manag e ment practices. — Activities that 
must c r oss the stream or be located within 
Zone — 1 — are allowed as lo n g as all other 
requirements of this Item are met. 
th) S t r e am — c r ossings — associated — wrth — timbeT 
harvesting — are — allowed — if — performed — m 



-ith — the — For e st — Pr actic e s 



accordance — wrttt — tnc — i or e st — t^ ractice 
Guidel i n e s Re la t e d t o Wate r Quality (15A 
NCAC 1 J .0201 -.0209 ) . 
(51 The prot e ct e d ripai 'i an area s h all have two zones as 
follows : 

(a) Zo ne 1 s h all b e an undis t urbed area of fo r est 

veg et ation. Any forest vegetation, as defined 

in Rul e .0202 of this Section, in Zo n e 1 as of 

My — 22: — f997 — shaH — be — maintained — and 

protected in accordance with this Rule. 

tjl Location of Zone 1 : Zo ne 1 begins at 

the top of bank foi intermittent streams 

and — perennial — streams — and — extends 

landward a dist an ce of 30 feet on all 

sides — of — tftc — waterbody. — measured 

horizontally on a line perpendicula r to 

the — waterbody. Foi — afl — other 

waterbodies. Zone 1 begi n s at the top 
of bank o r mean h i gh water l in e a n d 
extends landward a distance of 30 f e et, 
measured — ho r izo n tally — on — a — Hne 
perpendicular to the wate rb ody. 
(ifl The followi n g practices a n d activities 
are allowed in Zone 1 : 
tA) Natural regeneration of forest 
vegetation — arrd — planting 
vegetation — to — enhance — tfte 
riparian area if disturbance is 
minimized, provided that any 
plantings shall primarily consist 
of — locally — native — trees — arrd 
shrubs; 
(fii Selective cutting of individual 
trees of high value in the outer 
20 feet of Zone 1 . provided that 
the basal area of this outer 20- 
foot wide area remains at or 
above 75 square feet per acre 
and is computed according to 
the following method. — Basal 
area of this outer 20-foot wide 
area shall be computed every 
100 feet along the stream to 
ensure — even — distribution — of 
forest vegetation and shall be 
ba sed o n all t r ees measured at 
4.5 fe e t from g r ou n d level. — No 
tracked o r wheeled equ ipm ent is 
allowed i n Zone — 1 — except at 



stream — c r oss i ngs — which — are 
designed. — constructed — and 
maintained in accordance with 
Forest — Pr act i ce — Guidelines 
Related to Water Quality (15A 
NCAC 1J.020I -.0209): 

fd Ho r ticultu r e — or — silvicultural 
practices to m ainta i n the health 
of individual trees: 

t&) Removal — of — individual — tre e s 
which are in danger of causing 
damage — to — dwellings. — other 
structures o r the stream channel; 

t&) Removal of dead tre e s and other 
timber — cutting — techniques 
ne cess ar y to p r ev e nt e xtensive 
pest — o r disease — i n festatio n — if 
re commended by th e D ire c t o r. 
Division of Fo r est — Resou r ce s 
and app r oved by the Di r ecto r . 
Division of Wate r Quality: and 

fFl Ongoi n g ag r icultu r al op er atio n s 
pr ovided — that — existing — fo r est 
v egetatio n — rs — pr ot e ct e d — and 
r equi r e m e n ts in Rules .0236 and 
.0 238 — of — tfrrs — Sectio n — are 

tirii The — following — pr ac ti ces — are — not 
allowed in Zone 1 : 

tAl Land-distu r bing — act i vities — and 
placeme nt — of — fift — and — o t he r 
materials. — o t he r — than — those 
allowed — in — It ems — (^i — and 
(3)(a)(ii) — of this — Rttte; — that 
would disturb fo r est vegetation. 
a s d e fined in Rule .0200 of this 

t&) New development. — except — as 
provided in Sub-Items (2)td), 
(2)(e)and (2)(f)of this Rule: 
New — on-site — sanitary — sewage 
systems — which — use — ground 
adsorption; 

The application of fertilizer: and 
Any activity that th r eatens the 
health — and — function — of — the 
vegetation — including. — btit — not 
limited — to; — applicat i on — of 
chemicals in amou n ts exceeding 

t-h-e m a n ufacturer's 

r e c o mm ended r ate, uncontrolled 
sed i me n t sou r ces on adjacent 
la n ds, a n d the c r eation of any 
a r eas with bare soil. 
ttr) Vegetation i n Zone 2 sha l l consist of a de n se 
g r ound cove r composed of herbaceous o r 



tei 



mi 
mj 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



289 



PROPOSED RULES 



woody species which provides for d i ffusion 
and infiltration of runoff a n d filtering of 
pollutants. 

til Location of Zone 2 : Zo ne 2 begins at 
the outer e dg e of Zone I and extends 
landward a min i mum of 20 feet as 
measured — horizontally — on — a — Hne 
perpendicular to the wate r body. — The 
combined minimum width of Zo n es 1 
a nd 2 s h a l l be 50 feet on all sides of 



(rii The follow i ng practic e s and activities 
are allowed in Zone 2 in add ition to 
those allowed in Zone 1 : 

(A) Periodic mowing and removal 
of pla n t p r oducts such as timber, 
nuts, and fru i t is allowed o n a 
periodic — basis — p r ovided — the 
intended purpose of the r iparian 
area — rs — not — compromised — by 
harvesting, distu rb ance, o r loss 
of forest or herbaceous ground 
cover. 

(B) Forest vegetation in Zo n e 2 may 
be — managed — tt) — minimize 
s h adi n g o n adjacent land outside 
the riparian area if the water 
quality function of the riparian 
a r ea is n ot compromised. 

tG) O n - g o i n g ag r icultural 

op er a ti o ns — provided — t+ral 
r equ ir eme n ts of Rules .023 6 and 
:Q3M — of th i s — S ect i o n — are 
followed. 
(Ttr) The follow i ng p r act i ces a n d activities 

arc not allowed i n Zone 2: 

(tV) La n d disturbing activities and 
p lace m e n t — of — frH — anti — other 
materials. — other — than — t h ose 
allowed — in — Items — (-21 — and 



m 



tei 



t©1 



(3)(b)(i i ) of this Rule ; 

New developm e nt, except — as 

provided in Sub-Items — (2)(e) 

and (2)(fl of this Rule; 

New — o n -s i te — sa n ita r y — sewage 

systems — which — ttsc — ground 

adsorption; 

The applicat i on of fertilize r ; a n d 

Any activity that threatens t he 

health — and — function — of — the 

vegetation — including. — btrt — not 

limite d — tn; — application — of 

d i e m i cals in a m ou n ts exceeding 

tr+re m a n ufactu r e r 's 

recommended rate, uncontrolled 
sediment sources on adjacent 
l ands, and the creation of any 



areas with bare soil. 

tc) Timber removal and skidding of trees shall be 

directed away from the water course o r wate r 

body. Skidding shall be done in a manne r t o 

prevent the creation of ephemeral c h a nn e ls 

perpendicular to the water body. — A n y tr ee 

removal must be perform e d in a m a n ner that 

does not compromis e the intended pu r pose of 

the riparian area and is in acco r dance with the 

Fo r est P r actices Guidelines Related to Water 

Quality (15ANCAC 1 J .0201 -.0209). 

t&i Maintenance of sheet flow in Zones 1 and 2 is 

required in accordance with th i s Item. 

(ii Sheet flow must be ma i ntai n ed to the 

maximum — extent — pr ac ti c al — th r ough 

d i spe r s i ng co n ce ntr a te d flow and re ^ 

establ i shment of vegetation to maintain 

the e ffectiveness of the riparian area. 

tit) Concen tr ated r u n off from new d i tc h es 

or — m an m ade — co n veya n ces — mttst — be 

dispersed into sheet flow befo r e the 

r unoff e n ters Zone 2 of the riparian 

area. — Ex i s t i n g ditc h es a n d manmade 

conveyances, as specifled i n Sub-I t em 

(2)(a) of this Rule, are exempt from 

this r equi r e m ent; however, care shall 

be taken to mi n imize pollutant loading 

through — these — ex i sting — d i tc h es — and 

ma n made conveya n ces from fertilizer 

application o r e r os i o n . 

frit) Pe r iodic corrective action to r esto r e 

sheet — flnw — strati — be — taken — by — the 

landowner i f necessa r y to impede the 

formation of eros i on gullies which 

a l lo w — concentrated — fkrw — to — bypass 

t r eatment in the r i parian area. 

t^ Pe r iod i c maintenance of modified natural 

streams such as canals is allowed p r o v ided 

that — disturbance — is — minimized — and — the 

structure and function of the riparian area is 

n ot compromised. — A grassed t r avelway is 

allowed o n one s i de of t h e waterbody when 

alternative forms of maintenance access are 

not practical. Tl i e width and specifications of 

t he tr avelway s h al l be only t h at n eed e d f or 

equipment — a c cess — and — operation. The 

travelway — strati — be — located — to — max i mize 
stream shading. 



t4l If a local gover nm ent has been issued a Municipal 
Separate Stormwater Sewer System permit or has 
b een de l egated to i mplement a local slormwa t er 
pr og r am, then the local gove r nment shall ensure that 
the r i par i an a r eas to be protected are. recorded on 
new or mod i f i ed plats. 

t5l Where the standards and ma n ag e ment requirements 
for riparian a r eas are i n co n flict with other laws, 
r egulations, and permits regardi n g stieams. steep 



290 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



slopes, cr ndi hi e soils, wetlands, tl o nd plai n s, fo re st 
ha r vesting, — surfac e — mi n ing. — land — distu r ba n ce 



activities. — dev e lop me nt 



TTT 



Coastal — Area 



Manag ement Act Areas of Environmental Concern. 

or other environmental protec t ion a re as, t he m o r e 

pro t ective shall apply. 
t€) Where applica t ion of this R ul e would prevent all 

reasonable us e s of a lot platted and recorded prior to 

t he e ff e ctiv e date of this Rule, a variance may be 

g r a n ted — by — the — Environmental — Management 

Commission if it finds that : 

W practical d i fficulties or unn e c e ssary hardships 
would r esult in strict applica ti o n of the r ule ; 

(tr) such difficulties o r h ar dshi p s re sul t — from 
co n ditio n s w hic h a r e p e cul i a r to the property 
in volv e d: a n d 

(cl th e ge n e r al pur p ose and i ntent of the rule 

w ould b e pres er ved, wate r qual i ty would be 

pr ot e ct e d and substantial justice would be 

do ne if the varia n ce were granted. 

The foUowinti is the management strategy for maintaining 

and protecting riparian buffers in the Neuse Ri\er Basin. 

UJ PURPOSE. The purpose of this Rule shalj be to 

protect and preserve riparian buffers m the Neuse 

River Basin to maintain their nutrient remosal 

functions. 
ill DEFINITIONS. For the purpose of this Rule, these 

terms shall be defined as follows: 

(a) 'Channel ' means a natural water-carrying 
trough cut \ertically into low areas of the land 
surface by erosi\e actic^n cif concentrated 
tlowing water or a ditch or canal excavated 
for the How of water, (cunenl definition in 
Forest Practice Guidelines Related to Water 
Quality, 15ANCAC II .0102) 
"DBH' means Diameter at Breast Height of a 



lb] 



tree, which is measured 
ground surface level. 



at 4..S feet above 



(c) 'Ditch or canal' means a man-made channel 
other than a modified natural stream 
C(>nstructcd for drainage purptises that [s 
typically dug through inter-stream di\ide 
areas. A ditch or canal may ha\e Hows thai 
are perennial, intermittent, or ephemeral and 
may exhibit hydrological and biological 
characteristics similar to perennial or 
intermittent streams. 

(d) 'Ephemeral (stormvsater) stream' means a 
feature that carries onh stormwalcr in direct 



respt^nse to precipitati(Mi with water llouing 
only during and shortly after large 
precipitation events. An ephemeral stream 
may or may not have a well-defined channel, 
the aquatic bed is always abme the water 
table, and stormwater runoff js the primary 
source of water. An ephemeral stream 



m 



i^ 



ihl 



ill 



ill 



iki 



typicalh lacks the biological, hydrological. 
and physical characteristics commonly 
associated with the continuous or intermittent 
conveyance of water. 

"Forest plantation' means an area of planted 
trees that may be conifers (pines) or 
hardwoods. On a plantation, the intended 
crop trees are planted rather than naturally 
regenerated from seed on the site, coppice 
(sprouting), or seed that is blown or carried 
into the site. 

High 'Value Tree" means a tree that meets or 
exceeds the following standards: for pine 
species. 14-inch DBH or greater or 18-inch or 
greater stump diameter; and, for hardwood or 
wetland species. 16-inch DBH or greater or 
24-inch or greater stump diameter. 
'Intermittent stream' means a well-defined 
channel that ccMitains water for only part of 
the year, typically during uinter and spring 
when the aquatic bed is hekw' the water table. 
The How may be hca\ily supplemented by 
stormwater runt^ff. An intermittent stream 
often lacks the biokigical and hydrological 
characteristics c(immonlv asscK'iated with the 
continuous conveyance of water. 
'Modified natural stream' means an on-site 
channelization or relocation of a stream 
channel and subsequent relocation of the 
intermittent (ir perennial IIovn as e\ idenced by 
topographic alterations in tfie immediate 
watershed. A modified natural stream must 
ha\c the typical biokigical. hydrological. and 
physical characteristics commonly associated 
with the continuous conveyance of water. 
'Perennial stream' means a well-defined 



(Al 



channel that contains water year round during 
a year of normal rainfall with the aquatic bed 
located below the water table for most ot' the 
year. Groundvsater is Utc primary source of 
water for a perennial stream, but U also 
carries storm y\ater runoff. A perennial 
stream exhibits the typical biological, 
hydrological. and physical characteristics 
commcMily associated with the continuous 
con\ eyance of water. 

'Perennial waterbc)dy' means a natural or 
man-made basin that stores surface water 
pemianenljy at depths sufficient to preclude 
gnnyth of rooted plants, including lakes, 
ponds, sounds, non-stream estuaries and 
ocean. For llie purpose of the State's riparian 
huflcr proiecticMi program, the waterh()dy 
must be part of a natural drainageyvay (i.e.. 
connected by surface How [o a stream). 
'Stream' means a body of concentrated 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



291 



PROPOSED RULES 



tlowing water in a natural low area or natural 

channel on the land surface. 

(ni) 'Tree " means a woody plant with a DBH equal 

to or exceeding five inches. 

131 APPLICABILITY. This Rule shall apply to 50-foot 

wide riparian buffers directly adjacent to surface 

waters in the Neuse Riyer Basin (intermittent 

streams, perennial streams, lakes, ponds, and 

estuaries), excludint: wetlands. The riparian buffers 

protected by this Rule shall be measured pursuant to 

Item (4) of this Rule. For the purpose oi' this Rule, a 

surface water shall be present U' the feature is 

approximately shown on either the most recent 

version of the soil survey map prepared by the 

Natural Resources Conservation Service of the 

United States Department of Agriculture or the most 

recent version ot' the 1:24.000 scale (7.5 minute) 

quadrangle topographic maps prepared by the 

United States Geologic Survey (USGS). Riparian 

buffers adjacent to surface waters that do not appear 

on either of the maps shall not be subject to this 

Rule. Riparian buffers adjacent to surface waters 

that appear on the maps shall be subject to this Rule 

unless one of the following applies. 

la] EXEMPTION WHEN AN ON-SITE 

DETERMINATION SHOWS THAT 

SURFACE WATERS ARE NOT PRESENT. 

When a landowner or other affected party 

believes that the maps have inaccurately 

depicted surface waters, he or she shall 

consult the Di\ision or the appropriate 

delegated local authority. Upon request, the 

Division or delegated local authority shall 

make on-site determinations. Any disputes 

over on-site determinations shall be referred 

to the Director in writing. A determination of 

the Director as to the accuracy or application 

of the maps is subject to review as provided 

in Articles 3 and 4 of G. S. 1 508. Surface 

waters that appear on the maps shall not be 

subject to this Rule H an on-site 

determination shows that they fall into one of 

the following categories. 

tjj Ditches and manmade conveyances 

other than modified natural streams, 
(ii) Manmade ponds and lakes that are 
located outside natural drainage ways, 
(iii) Ephemeral ( storm water ) streams. 
tb] EXEMPTION WHEN EXISTING USES 
ARE PRESENT AND ONGOING. This 
Rule shall not apply to portions of the 
riparian buffer where a use is existing and 
ongoing according to the following: 
tjj A use shall be considered existing d' U 
was present within the riparian buffer 
as of July 22. 1997. Existing uses shall 
include, but not be limited to, 



agriculture, buildings, industrial 
facilities, commercial areas, 
transportation facilities, maintained 
lawns, utility lines and on-site sanitary 
sewage systems. Only the portion of 
the riparian buffer that contains the 
footprint of the existing use is exempt 
from this Rule. Activities necessary to 
maintain uses are allowed provided 
that no additional vegetation is 
removed from Zone _L existing diffuse 
tlow is maintained, and surface waters 
are not disturbed. Grading and 
revegetating Zone 2 is allowed 
provided that the health of the 
vegetation in Zone 1 is not 
compromised, the ground is stabilized 
and existing diffuse flow is 
maintained, 
(ii) At the time an existing use is converted 
to another use, this Rule shall apply. 
An existing use shall be considered to 
be converted to another use if any of 
the following applies: 

(A) Impervious surface is added to 
the riparian buffer in locations 
where ii did not exist 
previously. 

(B) An agricultural (Operation within 
the riparian buffer is taken out 
of production. 

(C) A lawn within the riparian 
buffer ceases to he maintained. 

(4) ZONES OF THE RIPARIAN BUFFER. The 
protected riparian buffer shall have two zones as 
follows: 

(a) Zone 1 shall consist of a vegetated area that is 
undisturbed except for usc^ pro\ided for in 
Item (6) of this Rule. The k)cation of Zone 1 
shall be as follows: 

UJ For intermittent and perennial streams. 
Zone i shall begin at the most 
landward limit of ilie to^ of bank or the 
rooted herbaceous vegetation and 
extend landward a distance ot 30 feet 
on aU sides of the surface water, 
measured horizontally on a line 
perpendicular to the surface water, 
(ii) For ponds, lakes and reservoirs located 
within a natural drainage way. Zone i 
shall begin at tfie most landward limit 
of the normal water level or the rooted 
herbaceous xegetation and extend 
landward a distance of 30 feet, 
measured horizontally on a line 
perpendicular to Ihie surface water, 
(iii) For surface waters within the 20 



292 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



(5) 



Coastal Counties (defined in 15A 
NCAC 2B .0202) within the 
jurisdiction of the Division of Coastal 



(b) 



Management. Zone 1 shall begin at the 
most landward limit ot' the normal high 
water level, the normal water level, or 
the landward limit of coastal wetlands 
as defined by the Division of Coastal 
Management and extend landward a 
distance of 30 feet, measured 
horizontally on a line perpendicular to 
the surface water. 
Zone 2 shall consist of a stable, vegetated 
area that js undisturbed except for activities 
and uses provided for in Item (6) of this Rule. 
Grading and revegetating Zone 2 is allowed 
provided that the health of the vegetation ij] 
Zone i is not compromised. Zone 2 shall 
begin at the outer edge of Zone 1 and extend 
landward 20 feet as measured horizontally on 
a line perpendicular to the surface water. The 
combined width of Zones 1 and 2 shall be 50 
feet on aU sides of the surface water. 
DIFFUSE FLOW REQUIREMENT. Diffuse flow 
of runoff shall be maintained in the riparian buffer 
by dispersing concentrated flow and reestablishing 
vegetation. 

(a) Concentrated runoff from new ditches or 
manmade con\e\ances shall be convened to 
diffuse fiow be i ore the runoff enters the 
riparian buffer. 

(b) Periodic corrective action to restore diffuse 
flow shall be taken if necessar\ to impede the 
formation of erosion gullies. 

(61 TABLE OF USES. The following chart sets out the 
uses and their designation under this Rule as 
exempt, allowable, allowable with mitigation, or 
prohibited. The requirements for each category are 
given in Item (7) ol' this Rule. 





Exempt 


Allowable 


Allowable 

with 
Mitigation 


Prohibited 


Airport facilities: 

• Airport facilities that impact equal to or less than 1 50 
linear feet or one-third of an acre of riparian buffer 

• Airport facilities that impact greater than 150 linear feet 
or one-third of an acre of riparian buffer 




X 


X 




Archaeological activities 


X 








Bridges 




X 






Dam maintenance activities 


X 









14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



293 



PROPOSED RULES 



Drainage ditches, roadside ditches and stomiwater outfalls 
through riparian buffers: 

• Existinc drainage ditches, roadside ditches, and 
stormwaler outfalls provided that thev are manaaed to 
minimize the sediment, nutrients and other pollution that 
convey to waterbodies 

• New drainage ditches, roadside ditches and stormwater 
outfalls provided that a stormwater manaticnient facility 
is installed to control nitrosen and attenuate tlow before 
the conveyance discharges throufjh the riparian buffer 

• New drainage ditches, roadside ditches and stormwater 
outfalls that do not provide control for nitroiien before 
dischareinc through the riparian buffer 

• Excavation of the streambed in order to bring it to the 
same elevation as the invert of a ditch 


X 


X 




X 
X 


Drainasie of a pond in a natural drainatie way provided that 
a new riparian buffer that meets the requnements of Items 
(4) and (3) is established adjacent to the new channel 


X 








Fences provided that disturbance is minimized and 
installation does not result in removal of forest vegetation 


X 








Forest har\estini: - see Item (11) of this Rule 










Fertilizer application: 

• One-time fertilizer application to establish replanted 
veiietation 

• Oniiouii: ferlili/er application 


X 






X 


Gradint! and reveeetation in Zone 2 only provided that 
diffuse How and the health of existinii vegetation in Zone 1 
is not compromised and disturbed areas are stabilized 


X 








Greenway trails 




X 






Historic preser\ation 


X 








Mining activities: 

• Miniui! activities that are covered by the Mining Act 
provided that new riparian buffers that meet the 
requirements of Items (4) and (5) are established 
adjacent to the relocated channels 

• Mining activities that are not covered by the Mining Act 
OR where new riparian buffers that meet the 
requirements or Items (4) and (5) are not established 
adjacent to the relocated channels 




X 


X 




Landfills 








X 



( 



( 



294 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



Non-electric utility lines: 










• Impacts other than perpendicular crossinas in Zone 2 




X 






only 










• Impacts other than perpendicular crossinsrs in Zone 1 






X 




• Perpendicular crossings that disturb equal to or less than 


X 








40 Hnear feet of riparian butter 










• Perpendicular crossings that disturb greater than 40 




X 






linear feet but equal to or less than 150 linear feet of 










rioarian buffer 










• Perpendicular crossings that disturb greater than 150 






X 




linear feet of riparian buffer 










On-site sanitary sewage systems - new ones that use 








X 


ground absorption 










Oyerhead electric utility lines: 










• Impacts other than perpendicular crossings in Zone 2 


X 








only 










• Impacts other than perpendicular crossings in Zone 1 — 


X 








• Perpendicular crossings that disturb equal to or less than 


X 








150 linear feet of riparian buffer - 










• Perpendicular crossings that disturb greater than 150 




X 






linear feet of riparian buffer -^ 










Periodic maintenance of modified natural streams such as 




X 






canals and a grassed tra\elwa\ on one side of the surface 










water when aliernatise forms o( mainicnancc access are 










not practical 










Playground equipment: 










• Playground equipment on single family lots proyided 


X 








that installation and use does not result in remosal of 










yegetation 










• Playground equipment installed on lands other than 




X 






single-family k)ls or that requires rcminal of yegetation 











[ Proyided that, in Zone J_, aU oi the following BMPs for oyerhead utilit\ lines are used. 11 aU oi these BMPs are not used, then 
the oNcrhead utility lines shall require a no practical alternatives e\aluation by the Diyision. 

• A minimum zone of J_0 feet wide immediately adjacent to the water bod\ shall be managed such that only yegetation that poses 
a hazard or has the potential to grow tall ene)ugh to interfere with the line is remcncd. 

• Woody yegetation shall be cleared by hand. No land grubbing or grading is allowed. 

• Vegetatiye root systems shall be Jeft intact to maintain the integrity of the soil. Stumps shall remain where trees are cut. 

• Rip rap shall not be used unless it is necessary to stabilize a tower. 

• No fertilizer shall be used other than a one-time application to re-establish yegetation. 

• Construction actisilies shall minimize the removal of woody' vegetation, the extent of the disturbed area, and the time in which 
areas remain in a disturbed state. 

• Actiye measures shall be taken after construction and during routine maintenance to ensure diffuse How of storm water through 
the buffer. 

• In wetlands, mats shall be utilized to minimize soil disturbance. 

- Proyided that poles or towers shall not be installed within 10 feet of a water body unless the Diyision completes a no practical 
alternatives ev aluation. 



Exempt 



Allowable 



Allovyable 

with 

Mitigation 



Prohibited 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



295 



PROPOSED RULES 



Ponds in natural drainatie ways: 

• New ponds provided tiiat a riparian buffer that meets the 
requirements of Items (4) and (5) is established adiacent 
to the pond 

• New ponds where a riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established 
adiacent to the pond 




X 


X 




Protection of existing structures and facilities when this 
requires additional disturbance of the riparian buffer or the 




X 






stream channel 


Railroad crossings: 

• Railroad crossings that impact equal to or less than 150 
linear feet or one-third of an acre of riparian buffer 

• Railroad crossings that impact greater than 150 linear 
feet or one-third of an acre of riparian buffer 




X 


X 




Removal of previous fill or debris provided that diffuse 
flow is maintained and anv vegetation removed is restored 


X 








Road crossings: 

• Road crossings that impact equal to or less than 150 
linear feet or one-third of an acre of riparian buffer 

• Road crossings that impact greater than 150 linear feet 
or one-third of an acre of riparian buffer 




X 


X 




Stormwater management ponds: 

• New stormwater management ponds provided that a 
riparian buffer that meets the requirements of Items (4) 
and (5) is established adiacent to the pond 

• New stormwater management ponds where a riparian 
buffer that meets the reuuirements of Items (4) and (5) is 
NOT established adiacent to the pond 




X 


X 




Scientific studies and stream gauging 


X 








Stream restoratii)n 


X 








Streambank stabilization 




X 






Temporary roads: 

• Temporary roads that disturb less than or equal to 2,500 
square feet provided that vegetation is restored within 
six months 

• Temporarv roads that disturb greater than 2.500 square 
feet provided that vegetation is restored within six 
months 


X 


X 







I 



( 



296 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



Temporary sediment and erosion control devices: 

• In Zone 2 only provided that the vegetation in Zone 1 is 
not compromised and that discharge is released as 
diffuse flow in accordance with Item (5) 

• In Zone s 1 and 2 to control impacts associated with uses 
approved by the Division or that have received a 
variance provided that sediment and erosion control for 
upland areas is addressed to the maximum extent 
practical outside the buffer 

• In-stream temporary erosion and sediment control 
measures for work within a stream channel 



Underground electric utility lines: 

• Impacts other than perpendicular crossings in Zone 2 
only 

• Impacts other than perpendicular crossings in Zone 1 ' 

• Perpendicular crossings that disturb less than or equal to 
40 linear feet of riparian buffer' 

• Perpendicular crossings that disturb greater than 40 
linear feet of riparian buffer' 



Vegetation management: 

• Emergency tire control measures provided that 
topography is restored 

• Periodic mowing and harvesting of plant products in 
Zone 2 onl 



• Planting vegetation to enhance the riparian buffer 

• Pruning forest vegetation provided that the health and 
function of the forest vegetation is not compromised 

• Removal of individual trees which are m danger of 
causing damage to dwellings, other structures or human 
life 

• Removal of poison ivy 

• Removal of understory nuisance vegetation as defined 
in: 

Smith. Chem L. 1998. Exotic Plant Guidelines. 
Department of Environment and Natural Resources. 
Division of Parks and Recreation. Raleigh. NC. Guideline 
#30 



X 



X 



X 

X 
X 



X 

X 

X 
X 

X 

X 
X 
X 



X 



- Provided that, in Zone 1, al] of the following BMPs for underground utility lines are used. If all 21 these BMPs are not used, 
then the underground utility line shall require a no practical alternatives evaluaticm by the Division. 

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed. 

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench, where 
trees are cut. 

• Underground cables shall be installed by vibratory plow or trenching. 

• The trench shall be backfilled with the excavated soil material immediately following cable installation. 

• No fertilizer shall be used other than a one-time application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which 
areas remain in a disturbed state. 

• Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of stormwater through 
the buffer. 

• In wetlands, mats shall be utilized to minimize soil disturbance. 





ExeniDt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 



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297 



PROPOSED RULES 



Water dependent structures as defined in 13A NCAC 2B 




X 






.0202 










Water supply reservoirs: 










• New reservoirs provided that a riparian buffer that meets 




X 






the requirements of Items (4) and (5) is established 










adiacent to the reservoir 










• New reservoirs where a riparian buffer that meets the 






X 




requirements of Items (4) and (5) is NOT established 










adiacent to the reservoir 










Water wells 


X 








Wetland restoration 


X 









(21 REQUIREMENTS FOR CATEGORIES OF USES. 

Uses designated as exempt, allowable, allowable 

with mitigation and prohibited in Item (6) of this 

Paragraph shall have the following requirements: 

(a) EXEMPT. Uses designated as exempt are 

alKiwed within the riparian buffer. Exempt 

uses shall be designed, constructed and 

maintained to minimize soil disturbance and 

to provide the maximum water quality 

protection practicable. In addition, exempt 

uses shall meet requirements listed in Item (6) 

of thjs Rule for the specific use. 

ibj ALLOWABLE. Uses designated as 

allowable may proceed within the riparian 

buffer provided that there are no practical 

altemati\es to the requested use pursuant to 

Item (8) of this Rule. These uses require 

written authorization from the Division or the 

delegated local authority. 

(cj ALLOWABLE WITH MITIGATION. Uses 

designated as allowable with mitigation may 

pniceed within the riparian buffer provided 

that there are no practical alternatives to the 

requested use pursuant to Item (8) of this 

Rule and an appixipriale mitigation strategy 

has been approved pursuant to Item (10) of 

this Rule. These uses require written 

authorization from the Division or the 

delegated local authority. 

Id] PROHIBITED. Uses designated as 

prohibited may not proceed within the 

riparian buffer unless a variance is granted 

pursuant to Item (9) of this Rule. 

18] DETERMINATION OF ■:nO PRACTICAL 

ALTERNATIVES." Persons who wish to undertake 

uses designated as allowable or allowable with 

miligaiion shall submit a request for a "no practical 

alternatives" determination to the Division or to the 

delegated Uical authority. The applicant shall certify 

that the criteria identified in Sub-Item (8)(a) of this 

Rule are met. The Division or the delegated local 

authority shall ^rant an Authorization Certificate 

upon a "no practical alternatives" determination. 



The procedure for makin^; an Authorization 

Certificate shall be as follows: 

(a) For any request for an Authorization 



ibi 



(11) 



(iii) 



Certificate, the Division or the delegated local 

authority shall review the entire project and 

make a finding of fact as to whether the 

following requirements have been met in 

support of a jto practical alternatives" 

determination: 

(i) The basic project purpose cannot be 

practically accomplished in a manner 

that would better minimize 

disturbance, preserve aquatic life and 

habitat, and protect water quality. 

The use cannot practically be reduced 

m size or density, reconligured or 

redesigned to better minimize 

disturbance, preserve aquatic life and 

habitat, and protect water quality. 

Best management practices will be 

used if necessary to miniinize 

disturbance, preserve aquatic life and 

habitat, and protect water quality. 

Requests for an Authorization Certificate 

shall be reviewed and either approved or 

denied within 60 days of receipt of a 

complete submission based on the criteria in 

Sub-Item (8)(a) iii' tliis Rule by either the 

Division or the delegated local authority. 

Failure to issue an approval or denial within 

60 days shall conslilule that the applicant has 

demonstrated "no practical alternatives." The 

Division or the delegated local authority may 

attach conditions to the Authorizatii^n 

Certificate that support the purpose, spirit and 

intent of tlie riparian buffer protection 

program. Complete submissions shall 

include the l"olk)wing: 

UJ The name, address and phone number 

of the applicant: 
(ii) The nature oi" tfie activity to be 
conducted bv the applicant: 
The k)calion t)f the aciivitv. including 



(111) 



298 



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August 16, 1999 



14:4 



PROPOSED RULES 



the iurisdiclion: 

(iv) A map ot' sufficient detail to accurately 

delineate the bt)undaries of the land to 

be utilized in carryino out the activity. 

the location and dimensions of any 

disturbance m riparian buffers 

associated with the activity, and the 

extent of riparian buffers on the land: 

(y) An explanation of v\hv this plan for the 

activity cannot be practically 

acc(implished. reduced or reconfigured 

to better minimize disturbance to the 

riparian buffer, preserve aquatic life 

and habitat and prt)tect water quality; 

and 

(vi) Plans for any best management 

practices proposed to be used to 

control the impacts associated with the 

activity. 

(c) Any disputes over determinations regarding 

Authorization Certificates shall be referred to 

the Director for a decision. The Director's 

decision is subject to re\iew as pro\ided in 

Articles 3 and 4 of G.S. 150B. 

(9) VARIANCES. Persons who wish to undertake uses 

designated as prohibited have the opticm ot pursuing 

a \ariance. The Dnision or the appropriate 

delegated local authorit\ may grant minor \'ariances. 

The variance request procedure shall be as follows: 

(a) For any variance request, the Division or the 

delegated local authority shall make a finding 

of fact as to whether the following 

requirements have been met: 

ijj There are practical difficulties or 

unnecessary hardships that prevent 

compliance with the strict letter of the 

riparian buffer p r o t e c t i t) n 

requirements; 

(ii) The variance is in harmony with the 

general purpose and intent of the 

State's riparian buffer protection 

requirements and preserves its spirit; 

and 

(iii) In granting the variance, the public 

safety and welfare ha\e been assured 

water quality has been protected, and 

substantial justice has been done. 

IbJ MINOR VARIANCES. A minor vanance 

request pertains to activities that arc proposed 

only to impact any porlicm of Zone 2 oi the 

riparian buflcr. Minor Nariance requests shall 

be reviewed and approved based on the 

criteria in Sub-Item (9)(a) oi' tfns Rule by the 

either the Division or \[k delegated local 

authority pursuant to G.S. I5.^A Article 18, or 

G.S. I6()A-Articlc 19. The Division or the 



t£) 



delegated local authority may attach 
conditions to the variance approval that 
su pport the purpose, spirit and intent ot' the 
riparian buffer protection prograin. Requests 
for appeals of decisions made by the Di\ision 
shall be made to the Office ot' Administralnc 
Hearings. Request for appeals made by the 
delegated local authority shall be made to the 
appropriate Board of Adjustment under G.S. 
I60A-388 or G.S. I53A-.345. 
MAJOR VARIANCES. A major variance 
request pertains to activities that are proposed 
to impact any porti(>n of Zone 1 or any 
portion of both Zcines 1 and 2 of the riparian 
buffer. If the Division or the delegated local 
authority has determined that a maior 
variance request meets the requirements m 
Sub-Item (9)(a) oi' this Rule, then ft shall 
prepare a preliminary finding and submit it to 
the Commission. Preliminary findings on 
major variance requests shall tie reviewed by 
the ComiTiissic)n within 90 days after receipt 
by the Director. Requests for appeals of 
determinations that the requirements oi' Sub- 
Item (9)(a) oi this Rule have not been met 
shall be made to the Office ot' Administrative 
Hearings for dcterminaticm 



Di\ision 



made b\ the 
appropriate Board of 



160-388 or G.S. 



or the 

Adjustments under G S 

153.\-345 for determinati(ins made by the 
delegated kical authority. The purpose oi the 
Commission's review is to determine if h 
agrees that the requirements jn Sub-Item 
(9)(a) oi' this Rule have been met. Requests 
for appeals of decisic^ns made by the 
Coinmission shall tie made io the Office of 
Administrative Hearings. The following 
actions shall be taken depending on the 
Commissicin's decision on llie majcir Nariance 
request: 

tjj Upon the Commission's appro\al. the 

Division or the delegated local 

authority shall issue a final decision 

granting the major Nariance. 

(ii) Upon the Commission's approval with 

ct)nditions or stipulations, the Division 

or the delegated local authoritN shall 

issue a final decision. \Nhich includes 

these conditions or stipulations. 

(iii) Upon the Commission's denial, the 

DiN'ision or Uie delegated local 

authority shall issue a final decision 

denying the major variance. 

( 10) MITIGATION. Persons who Nvish to undertake uses 

designated as allowable with mitigation shall meet 

the f(>llowing requirements hi order to proceed with 



14:4 



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August 16, 1999 



299 



PROPOSED RULES 



their proposed use. 

(a) Obtain a determination of '^no practical 
alternatives" to the proposed use pursuant to 
Item [8] of this Rule. 

(b) Obtain approval for a mitigation proposal 
pursuant to 15A NCAC 2B .0242. 

(II) REQUIREMENTS SPECIFIC TO FOREST 

HARVESTING. The following requirements shall 

ap ply for forest harvesting operations and practices. 

(a) The following measures shall apply in the 

entire riparian buffer: 

111 Logging decks and sawmill sites shall 
not be placed iji the riparian buffer. 
Access roads and skid trails shall he 



iiii 



(iii) 

(IV) 



(vj 



(vi) 



(vii) 



(viii) 



(IX) 



in 



prohibited except for temporary and 
permanent stream crossings established 
in accordance with I5A NCAC JJ 
.0203. Temporary stream crossings 
shall be permanently stabilized after 
any site disturbing activitv is 
completed. 

Timber felling shall be directed away 
from the stream or water hod\. 
Skidding shall be directed away from 
the stream or water body and shall be 
done in a manner that minimizes soil 
disturbance and prevents the creation 
of channels or ruts. 

Individual trees may be treated to 
maintain or improve their health, form 
or vigor. 

Harvesting of dead or infected trees or 
application of pesticides necessary to 
prevent or control extensive tree pest 
and disease infestation shall be 
allowed. These practices must be 
approved by the Di\ision ot." Forest 
Resources for a specific site. The 
Division of Forest Resources must 
notify the Division ot' aH apprinals. 
Removal of individual trees that are in 
danger of causing damage to structures 
or human life shall be alloued. 
Natural regeneration of forest 
vegetation and planting of trees, 
shrubs. OT ground cover plants to 
enhance the riparian buffer shall be 
allowed provided that soil disturbance 
is minimized. Plantings shall consist 
primarily of native species. 
High intensity prescribed burns shall 
not be allowed. 

Applicaticin of fertilizer shall not be 
allowed except as necessary for 
permanent stabilization. Broadcast 
application of fertilizer or herbicides to 
the adjacent forest stand shall be 



conducted so that the chemicals are not 
applied directly to or allowed to drift 
into the riparian buffer. 
(b) In Zone I . forest vegetation shall be protected 
and maintained. Selective harvest as provided 
for below is allowed on forest lands that have 
a deferment for use value under forestry in 
accordance with G.S. 105-277.2 through G.S. 
277.6 or on forest lands that have a forest 
management plan prepared or approved by a 
registered professional forester. Copies of 
either the approval of the deferment for use 
value under forestry or IM forest 
management plan shall be produced upon 
request. For such forest lands, selective 
harvest is allowed in accordance with the 
following: 

ijj Tracked or wheeled vehicles are not 
permitted except at stream crossings 
designed, constructed and maintained 
in accordance with I5A NCAC U 
.0203. 



(Ill) 



Uvj 



(ii) Soil disturbing site preparation 
activities arc not allowed. 
Trees shall be removed with the 
minimum disturbance to the soil and 
residual vegetation. 

The followin g provisions for selective 
harvesting shall be met: 

(A) The first R) feet of Zone i 
directly adjacent to the stream 
or waterbody shall be 
undisturbed except for the 
removal of individual high 
value trees as defined provided 
that no trees with exposed 
primary roots visible in the 
streambank be cut. 

(B) In the outer 20 feet of Zone L a 
maximum of 50 percent of the 
trees greater than five inches 
dbh may be cut and removed. 



The reentry time for harvest 
shall be no more frequent than 
every 15 years, except on forest 
plantations where the reentry 
time shall be no more frequent 
than every five years. In either 
case, the trees remaining after 
harvest shall be as evenly 
spaced as possible. 
(C) In Zone 2i harvesting and 
regeneration of the f(>rest stand 
shall be allowed provided that 
sufficient grciund cover js 
mainlained to provide for 
diffusion and infiltration of 



300 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



surface runoff. 
T^ REQUIREMENTS SPECIFIC TO LOCAL 
GOVERNMENTS WITH STORMWATER 
PROGRAMS FOR NITROGEN CONTROL. Local 
governments that are required to have local 
stormwater programs pursuant to 15A NCAC 2B 
.0235 shall have two options for ensuring protection 
of riparian buffers on new developments within their 
jurisdictions as follows. 

(a) Obtain authority to implement a local riparian 
buffer protection program pursuant to 15A 
NCAC 2B .0241. 

(b) Refrain Irom issuing local approvals for new 
de\'elopment projects unless either: 

ijj The person requesting the appnn al 
does not propose to impact the riparian 
buffer of a surface water that appears 
on either the most recent versions of 
the soil survev maps prepared b^ the 
Natural Resources Conservation 
Service of the United States 
Department of Agriculture or iM most 
recent versions of the 1 :24,0()() scale 
(7.5 minute quadrangle) topographic 
maps prepared bv the United States 
Geologic Sur\ev (USGS). 
The person requesting the approval 
proposes to impact the riparian buffer 
of a surface water that appears on the 
maps described m Sub-Item ( 12)(b)(i) 
of this Rule and either: 

on-site 



Uli 



(A) Has recei\ed 



an 



.13) 



determination from the Division 
pursuant to Sub-Item (3)(a) of 
this Rule that surface waters are 
not present: 

(B) Has received an Authorization 
Certificate from the Division 
pursuant to Item (8) of this Rule 
for uses designated as 
Allowable under this Rule: 

(C) Has received an Autht^ri/.ation 
Certificate from the Division 
pursuant to Item (8) of this Rule 
and obtained the Division's 
approval on a mitigation plan 
pursuant to Item (10) of this 
Rule for uses designated as 
Allowable with Mitigation 
under this Rule: or 

(D) Has received a variance from 
the Commission pursuant to 
Item (9) (2i' this Rule. 

OTHER LAWS, REGULATIONS AND PERMITS. 
In aJi cases, compliance with this Rule docs not 
preclude the requirement to complv with all federal. 



state and local regulations and laws. 

Aiabuniy 143-214.1: 143-214.7: 143-215. 3(uHl ): S. L. 1995. 

c. 572. 

.0242 MITIGATION PROGRAM FOR 

PROTECTION AND MAINTENANCE OF 
RIPARIAN BUFFERS 

The following are the requirements lor the Riparian Buffer 
Mitigation Program. 

IJJ PURPOSE. The purpose of this Rule is to set forth 
the mitigation requirements that apply to the State's 
riparian buffer pnHection program. 
APPLICABILITY. This Rule applies to persons 



ill 



ill 



who wish to impact a riparian buffer when one of 
the following applies: 

(a) A person has received an Authorization 
Certificate pursuant to 15A NCAC 2B .0233 
for a proposed use that is designated as 
"allowable with mitigation." 

(b) A pers()n has received a variance pursuant to 
15A NCAC 2B .0233 and is required to 
perform mitigation as a condition of a 
variance approval. 

THE AREA OF MITIGATION. The required area 
oi' mitigation shall be determined by either the 
Division or the delegated local authority according 
to the following: 

(a) The impacts in square feet to each zone of the 
riparian butler shall be determined by the 
Division or the delegated local authority by 
adding the following: 

{1} The area ol the footprint of the use 

causing the impact to the riparian 

buffer, 
(ii) The area oi' the boundary of any 

clearing and grading activities within 

the riparian buffer necessary to 

accommodate the use, 
(iii) The area of any ongoing maintenance 

corridors within the riparian buffer 

associated w ith the use. 

(b) The required area of mitigation shall be 
determined by apphing the following 
multipliers to the impacts determined in Sub- 
item (3)(a) of this Rule to each zone of the 
riparian buffer: 

{]} Impacts to Zone i ol the riparian 
buffer shall be multiplied b\ 3. 

(ii) Impacts to Zone 2 ol" the riparian 
buffer shall be multiplied b\ 1 .5. 

(iii) Impacts to wetlands within Zcines i 
and 2 of the riparian buffer that are 
subject to mitigation under 15A NCAC 
2H .0506 shall complv with the 
mitigation ratios in 15A NCAC 2H 



14:4 



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August 16, 1999 



301 



PROPOSED RULES 



.0506. 

{4J THE LOCATION OF MITIGATION. The 
mitigation effort shall be located in the same 
Nutrient Management Zone of the Neuse River 
Basin of the proposed impact or lower in the basin. 
The four Nutrient Management Zones are laid out in 
the Division's Report. 'Total Maximum Daily Load 
for Tcnal Nitrogen to the Neuse River Estuary. 
North Carolina' (February 1999). 

(5) ISSUANCE OF THE MITIGATION 
DETERMINATION. The Division or the delegated 
local authority shall issue a mitigation determination 
that specifies the required area and location of 
mitigation pursuant to Items (3) and (4) of this Rule. 

16] OPTIONS FOR MEETING THE MITIGATION 
DETERMINATION. The mitigation determination 
made pursuant to Item (5) of this Rule may be met 
through one of the following options: 

(a) Payment of a compensatory mitigation fee to 
the Riparian Buffer Restoration Fund 
pursuant to Item (7) oi' this Rule. 

(b) Donation of real property or of an interest in 
real property pursuant to Item (8) of this 
Rule. 

(c) Restoration or enhancement of a riparian 
buffer that is not otherwise required to be 
protected. This shall be accomplished by the 
applicant after submittal and approval of a 
restoration plan pursuant to Item (9) of this 
Rule. 

TO 



ill 



PAYMENT TO THE 
RESTORATION FUND. 



RIPARIAN BUFFER 
Persons who choose to 



satisfy their mitigation determination by paying a 
ccmipensaiorv mitigation fee to the Riparian Buffer 
Restoration Fund shall meet the following 
requirements: 

(a) SCHEDULE OF FEES: The amount of 
payment into the Fund shall be determined by 
multiplying the acres or square feet of 
mitigation determination made pursuant to 
Item (5) of this Rule by ninety-six cents (.96) 
per square foot or forty-one thousand, six 
hundred and tv/enty-five dollars ($41.625) 
per acre. 

(b) The required fee shall be submitted to the 
Division of Water Quality. Wetlands 
Restoration Program. P.O. Box 29535. 
Raleigh. NC 27626-0535 prior to any activity 
that results in the removal or degradation of 
the protected riparian buffer for which a "no 
practical alternatives" determination has been 
made. 

(c) The payment of a compensatory mitigation 
fee may be fully or partially satisfied by 
donation of real properly interests pursuant 
to Item (8) of this Rule. 

(d) The fee outlined in Sub-item (7)(a) of this 



Rule shall be reviewed every two years and 

compared to the actual cost of restoration 

activities conducted by the Department. 

including site identification, planning. 

implementation, monitoring and maintenance 

costs. Based upon this biennial review. 

revisions to Sub-item (7)(a) of this Rule will 

be recommended when adjustments to this 

Schedule of Fees are deemed necessary. 

18J DONATION OF PROPERTY. Persons who choose 

to satisfy their mitigation determination by donating 

real property or an interest in real property shall 

meet the following requirements: 

(a) The donation of real property interests may 
be used to either partially or fully satisfy the 
payment of a compensatory mitigation fee to 
the Riparian Buffer Restoration Fund 
pursuant to Item (7) of this Rule. TTie value 
of the property interest shall be determined by 
an appraisal performed iji accordance with 
Sub-item (8)(d)(iv) of this Rule. The 
donation shall satisfy the mitigation 
determination if the appraised value of the 
donated property interest is equal to or greater 
than the required fee. If the appraised value 
ot' the donated property interest is less than 
the required fee calculated pursuant to Sub- 
item (7)(a) of this Rule, the applicant shall 
pay the remaining balance due. 

(b) The donation of conservation easements to 
satisfy compensatory mitigation requirements 
shall be accepted only if the conservation 
easement is granted in peipetuity. 

(c) Donation of real property interests to satisfy 
the mitigation determination shall be accepted 
only if such property meets all of the 
following requirements: 

(i) The property shall be located within an 
area that is identified as a priority for 
restoratit)n jji the Basinwide Wetlands 
and Riparian Restoration Plan or shall 
be located at a site that is otherwise 
consistent with the goals outlined in 
the Basinwide Wetlands and Riparian 
Restoration Plan, 
(ii) The property shall contain riparian 
buffers nol currently protected by the 
State's riparian buffer protection 
program that are in need of restoration, 
(iii) TTie restorable riparian buffer on the 
property shall have a minimum length 
of 1 OOP linear feet along a surface 
water and a minimum width of 50 feet 
as measured horizontally on a line 
perpendicular to the surface water. 
The size ol' the restorable riparian 
buffer on the priiperty to be donated 



(iv) 



302 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



PROPOSED RULES 



tv] 



(vi) 



Uxj 



(X) 



(xi) 



(xii) 



• 



shall equal or exceed the acreage of 
riparian buffer required lo he mitigated 
under the mitigation respc)nsihilitv 
determined pursuant to Item (3) of this 
Rule. 

The property shall not require 
excessive measures for successful 
restoration, such as removal of 
structures or infrastructure. 
Restoration of the property shall be 
capable of fuUv offsetting the adverse 
impacts of the requested use. 
The property shall be suitable to be 
successfully restored, based on 
existing hydrology, soils, and 
vegetation. 



(D) 



Carolina;" 
significant 



Natural Heritage 



(vii) The estimated cost of restoring and 
maintaining the property shaH not 
exceed the value of the prt)pcrlv minus 
site identification and land acquisition 
costs. 

The property shall not contam cultural 
or historic resources. 
The property shall not contain any 
hazardous substance or solid waste. 
The property shall not contain 



structures oi materials that present 
health or safety problems to the 
general public. H' vvells. septic, u aicr 
or sev\'er connections exist. thc\ shall 
he filled, remediated or closed at 
owner's expense in accordance with 
state and local health and safety 
regulations. 

The property shall have the potential to 
remove nitrogen, improve water 
quality and enhance natural resources 
after restoration. The Di\ision shall 
consider whether the property is 
adjacent to or includes: 

(A) a^ Depart ment-appro\'ed 
restoration or preservation 
project or public lands; 

(B) a sensitive natural resource, as 
identified jji the Basinwide 
Wetland and Riparian 
Restoration Plan; 

(C) known occurrences of rare 
species as identified by the 
North Carolina Natural Heritage 
Program i_n tjic "Natural 
Heritage Program List oi Rare 
Animal Species of North 
Carolina" or Utc "Natural 
Heritage Program List of the 
Rare Plant Species of North 



IE) 



ID 



Area as identilied by the North 
Carolina Natural Heritage 
Pnigram [n tfie "North Carolina 
Natural Heritage Program 
Biennial Protection Plan. List of 
Significant Natural Heritage 
Areas." Copies of these 
documents may be obtained 
from the Department of 
Environment and Natural 
Resources. Division of Parks 
and Recreation. Natural 
Heritage Program. P.O. Box 
27687. Raleigh. North Carolina 
27611; 

state-listed 



federally 
sensitive- 
threatened 



or 

endangered, or 
species, or their 



:ritical habitat; 



non-suppcuting. partially 
supporting, or support- 
threatened waters as designated 
by the Division pursuant to 40 
CFR 131.10(a) through (g). 
This material is available at the 
Department of Environment and 
Natural Resources. Di\ision cvf 
Water Quality. Water Quality 
Section. 512 North Salisbury 
Street. Raleigh. North Carolina 
27604. 
(xiii) The property and adjacent properties 
shall not have prior, current, and 
known future land use that would 
inhibit the function ot tlie restoration 
effort, 
(xiv) The property shall not have any 
encumbrances or conditions on the 
transfer oi' tfie property interests, 
(d) At Utc expense oi Uie applicant or donor, the 
folk)wing information shall be submitted to 
the Division with any proposal for donations 
or dedications oi interest in real property: 
{jj Documentation that the property meets 
the requirements laid out iji Sub-Item 
(8)(c) of this Rule. 
ill] US Geological Survey 1:24.000 (7.5 
minute) scale lopt)graphic map, county 
tax map. US DA Natural Resource 
Conservation Service County Soil 
Survey Map, and counlv road map 
showing the location oi ifie property to 
be donated along with information on 
existing site conditions, vegetation 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



303 



PROPOSED RULES 



mu 



(iv] 



19] 



(y) 

RIPARIAN 



types, presence of existing structures 
and easements. 

A current property survey performed 
in accordance with the procedures of 
the North Carolina Department of 
Administration. State Property Office 
as identified by the State Board of 
Registration for Professional Engineers 
and Land Surveyors in "Standards of 
Practice for Land Surveying in North 
Carolina." Copies may be obtained 
from the North Carolina State Board of 
Registration for Professional Engineers 
and Land Surveyors. 3620 Six Forks 
Road. Suite 300. Raleigh. North 
Carolina 27609. 

A current appraisal of the value of the 
property performed in accordance with 
the procedures ot' the North Carolina 
Department of Administration. State 
Property Office as identified by the 
Appraisal Board in the "Uniform 
Standards of Professional North 
Carolina Appraisal Practice." Copies 
may be obtained from the Appraisal 
Foundation. Publications Department. 
P.O. Box 96734. Washington. D.C. 
20090-6734. 
A title certificate. 



BUFFER RESTORATION OR 



ENHANCEMENT. Persons who choose to meet 
their mitigation requirement through riparian buffer 
restoration or enhancement shall meet the following 
requirements: 

(a) The applicant may restore or enhance a 
riparian buffer that js not protected under the 
State's riparian buffer protection program H' 
either of the following applies: 

(i) The area of riparian buffer restoration 
is equal to the required area of 
mitigation determined pursuant to Item 
(3) of this Rule, 
(ii) The area of riparian buffer 
enhancement is three times larger than 
the required area of mitigation 
determined pursuant to Item (3) of this 
Rule. 

(b) The location of the riparian buffer restoration 
or enhancement shall comply with the 
requirements in Item (4) of this Rule. 

(c) The riparian buffer restoration or 
enhancement site shall have a minimum 
width oi' 50 feel as measured horizontally on 
a line perpendicular to the surface water. 

(d) The applicant shall first receive an 
Authorizatio n Certificate for the proposed use 
according to the requirements of I5A NCAC 



2B .0233. After receiving this 

determination, the applicant shall submit a 
restoration or enhancement plan for approval 
by the Division. The restoration or 
enhancement plan shall contain the following. 



ill 



(iii) 



(iv) 



A map of the proposed restoration or 

enhancement site. 

A vegetation plan. The vegetation plan 

shall include a minimum of at least two 

native hardwood tree species planted at 

a density sufficient to provide 320 

trees per acre at maturity. 

A grading plan. The site shall be 

graded in a manner to ensure diffuse 

flow through the riparian buffer. 

A fertilization plan. 

A schedule for implementation. 



(e) Within one year after the Division has 
approved the restoration or enhancement 
plan, the applicant shall present proof to the 
Division that the riparian buffer has been 
restored or enhanced. If proof is not 
presented within this timeframe, then the 
person shall be in violation of the State's or 
the delegated local authority's riparian buffer 
protection program. 

(f) The mitigation area shall be placed under a 
perpetual conservation easement whose terms 
are acceptable to the Division. 

(g) The applicant shall submit annual reports for 
a period of five years after the restoration or 
enhancement showing that the trees planted 
have survived and that diffuse flow through 
the riparian buffer has been maintained. The 
applicant shall be responsible for replacing 
trees that do not survive and for restoring 
diffuse flow jf needed during that five-year 
period. 

Authonn- 143-214.1: 143-214.7: 143-215. 3(a)( 1 ): Chapter 
221. 1998 Session Laws. 



TITLE 23 - DEPARTMENT OF COMMUNITY 
COLLEGES 

Notice is hereby given in accordance with G.S. 150B-2I.2 
that the NC State Board of Community Colleges intends to 
amend rules cited as 23 NCAC 2D .0323 - .0324. Notice of 
Rule-making Proceedings was published in the Register on 
April 1. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted ar 10:00 a.m. on 
September 30. 1999 at the Caswell Building, State Board 



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PROPOSED RULES 



Room. 200 W. Jones St.. Raleigh. NC. 

Reason for Proposed Action: To provide colleges guidance 
for courses offered via media. 

Comment Procedures: All persons interested in these rules 
may submit statements in writing from the date of this notice 
until September 30. 1999. mailed to Mr. Morris W. Johnson. 
NC Community Colleges System Office. 5019 Mail Service 
Center. Raleigh. NC 27699-5019 or delivered to: Caswell 
Building. 200 W. Jones St.. Raleigh. NC. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 2 - COMMUNITY COLLEGES 

SUBCHAPTER 2D - COMMUNITY COLLEGES: 
FISCAL AFFAIRS 

SECTION .0300 - BUDGETING: ACCOUNTING: 
FISCAL MANAGEMENT 

.0323 REPORTING OF STUDENT HOURS IN 
MEMBERSHIP FOR CURRICULUM 
CLASSES 

(a) Academic Semester. The academic semester fi)r all 
credit courses shall he designed so that all classes may be 
scheduled to include the number of instructional hours shown 
in the college catalog and the approved curriculum program ot 
study compliance document and reported for FTE purposes. 
Instructional hours include scheduled class and laboratory 
sessions as well as examination sessions. Length of semesters 
or courses may vary as long as credit hours are assigned 
consistent with 23 NCAC 1 A.OIOI and as long as membership 
hours are reported consistent with the other provisions of this 
Rule. Also, note 23 NCAC 2D .0327 which identifies the 
reporting periods for submission of Institution Class Reports. 

(b) Regularly-Scheduled Classes. 

( 1 ) A class is regularly scheduled if it meets all of the 
following criteria: 

(A) assigned defmite beginning and ending time; 

(B) specific days the class meets is 
predetermined; 

(C) specific schedule included on the Institution 
Master Schedule or other official college 
documents; 

(D) class hours assigned consistent with college 
catalog and curriculum standard 
requirements; 

(E) identified class time and dates the same for all 
students registered for the class excluding 
clinical or cooperative; 

(I) Classes which have a regularly 
scheduled lecture section and a 



non-regularly scheduled laboratory 
section will satisfy this criteria. The 
census date (10% point) must be 
determined from the regularly 
scheduled portion of the class. 
Verification of student participation in 
the laboratory section of the class must 
be available for review, 
(ii) A student is considered absent if that 
student did not attend during the 
specified times or days the class was 
scheduled to meet. 

(2) A student is considered to be in class membership 
when the student meets all the following criteria: 

(A) enrolled as evidenced by payment of the 
applicable tuition and fees, or obtained a 
waiver as defined in G.S. 1 15D-5(b); 

(B) attended one or more classes prior to or on 
the 10 percent point in the class; 

(C) has not withdrawn or dropped the class prior 
to or on the 1 percent point. 

(3) Student Membership Hour. A student membership 
hour is one hour of scheduled class or laboratory for 
which the student is enrolled. A college shall 
provide a minimum of 50 minutes of instruction for 
each scheduled class hour. A college must provide 
sufficient time between classes to accommodate 
students changing classes. A college may not report 
inore hours per student than the number of class 
hours scheduled in the approved curriculum 
program of study compliance document. 

(4) Calculation of Student Membership Hours for 
Regularly Scheduled Classes. Student membership 
hours are obtained by multiplying the number of 
students in membership at the 10 percent point in 
the class by the total number of hours the class is 
scheduled to meet for the semester as stated in the 
college catalog and the appiined curriculum 
program of study compliance document. 

(5) Maintenance of Records of Student Membership 
Hours. Accurate attendance records must shall be 
maintained for each class through the 10 percent 
point of the class. Colleges are encouraged to 
maintain attendance records for the duration of all 
classes. Attendance records a re to shall be signed 
by the instructor or lead instructor, verifying their 
accuracy, and are to shall be maintained b\ the 
college until released from all audits (see the Public 
Records Retention & Dispositum Schedule for 
Institutions in the Communits College System). 
Student membership hours shall be summarized in 
the Institution's Class Report and certified by the 
president or designee. For classes identified as 
non-traditional delivery (see Subparagraph (e)(1) of 
this Rule for additional information), documentation 
of student contact prior to the 10 percent point m ust 



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305 



PROPOSED RULES 



shall be maintained in the same manner as the attendance 
records mentioned in this Rule. 

(c) Non-Rcguiarly Scheduled Classes. 

( 1 ) A non-regularly scheduled class may include any or 
all of the following: 

(A) a class where a definitive beginning and 
ending time is not determined; 

(B) a class offered in a learning laboratory type 
setting (see Subparagraph (b)(6) of Rule 
.0324 of this Subchapter for definition of 
learning laboratory); 

(C) a class self-paced in that the student 
progresses through the instructional materials 
at his/l icr the student's own pace, and can 
complete the courses as soon as he/she the 
student has successfully met the educational 
objectives. Classes offered as independent 
study are generally offered in this manner; 

(D) a class in which a student may enroll during 
the initial college registration period or in 
which the student may be permitted to enroll 
at any time during the semester; 

(E) any class not meeting all criteria for a 
regularly scheduled class, as shown in 
Subparagraph (b)(1) of this Rule, is 
considered to be a non-regularly scheduled 
class for reporting purposes. Note classes 
defined as non-traditional (see Paragraph (e) 
of this Rule) which are identified as a 
separate student hour reporting category and 
are not subject to the above provisions in 
Paragraph (c) of this Rule. 

(2) Definition of Student Membership. A student is 
considered to be in class membership when the 
student meets the following criteria: 

(A) enrolled as evidenced by payment of the 
applicable tuition and fees, or obtained a 
waiver as defined in Paragraph (a) of Rule 
.0202 of this Subchapter; and 

(B) attended one or more classes. 

(3) Definition of a Student Contact Hour. For 
non-regularly scheduled classes, student contact 
hours, actual hours of student attendance in a class 
or lab are to shall be reported for each student 
determined to be in membership. Sixty minutes 
shall constitute an hour. 

(4) Calculation of Student Contact Hours for 
Non-Regularly Scheduled Classes. For these 
classes, actual time of class attendance rs^tti shall be 
reported; 60 minutes shall constitute an hour. 
Student contact hours for these classes are the sum 
of all the hours of actual student attendance in a 
class in a given semester. 

(5) Maintenance of Records of Student Contact Hours. 
Accurate :ittendance records m ust shall be 
maintains; ;)r each class of the nature described in 
this Rule ihrouuh the entire semesicr .Attendance 



records are to shall be signed by the instructor or 
lead instructor, verifying their accuracy, and are to 
shall be maintained by the college until released 
from all audits (see the Public Records Retention & 
Disposition Schedule for Institutions in the 
Community College System). Student contact hours 
shall be summarized in the Institution's Class Report 
and certified by the president or designee. 

(d) Skills Laboratory or Computer Tutorial Laboratory. 
Individualized instructional laboratories are similar to learning 
laboratories (see Subparagraph (b)(6) of Rule .0324 of this 
Subchapter) except the participants are curriculum students. 
Skills labs or computer tutorial labs are 
r emedial/developm e ntal remedial or developmental in nature 
and intended for students who are experiencing academic 
difficulty in a particular curriculum course. A skills laboratory 
instructor must shall be qualified in the single-subject area of 
the skills laboratory. A computer tutorial laboratory 
coordinator need not be qualified in any of the subject area(s) 
provided in a computer tutorial laboratory. Student contact 
hours may be reported (or budget/FTE when students are 
required by their instructor to attend either of the laboratories 
for remed i al/developmental remedial or deselopmental work 
and when the skills laboratory instructors or computer tutorial 
coordinators are paid with curriculum instructional funds. 

(1) Documentation of instructor referral must shall be 
maintained for auditing purposes. Maintain 
documentation until released by audit. 

(2) Homework assignments are shall not penriitted to be 
reported for budget/FTE. Note 23 NCAC 2D 
.0325(a). 

(3) Calculation of Student Contact Hours for Skills 
Laboratory or Computer Tutorial Laboratory. For 
these classes, actual time of class attendance rs-to 
shall be reported: 60 minutes shall constitute an 
hour. Student hours generated for these types of 
classes are the sum of all the hours of actual student 
attendance in a class in a gi\ en semester. 

(e) Classes Identified as Curriculum Non-Traditional 
Delivery. 

(1) Definition. Due to the methodology by which 
instruction is delivered, non-traditional delivery 
classes are not consistent with the definitions of 
regularly scheduled or non-regularly scheduled 
classes described in this Rule. Non-traditional 
deli\ery classes rrmst shall be offered through media 
such as radio. tele\ ision. and other media as well as 
through correspondence or newspapers. The 
instruction delivered is prestructured into 
identifiable units. Non-traditional delivery classes 
do not include classes identified as independent 
study which are not media based or are not 
correspondence or newspaper based. 

(2) For those classes identified as non-traditional 
deli\ery, student attendance in class or in an 
orientation session, submission of a written 
assiiinment or submission of an examination, is the 



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PROPOSED RULES 



basis for the determination of class membership at 
the 10 percent point of the class. Student 
membership hours earned in non-tradilional delivery 
classes shall be calculated by multiplying the 
number of students in membership, as determined in 
the prior sentence, times the number of hours 
assigned to the class in official college documents. 
For these classes, the number of hours assigned 
must shall be consistent with the credit hours 
assigned according to 23 NCAC 2C .0104. lA 
.0101. as well as the appropriate curriculum 
standard. 
[3] Rule 23 NCAC 2E .0604 specifies that if two or 
more colleges jointly (tffer credit courses or 
programs, the colleges shall enter into a written 
collaborative agreement. Individual courses 
developed by a college or jointly by colleges and 
deli\ered via media are not subject to this Rule 
(Collaborative Agreements) as long as a degree, 
diploma, or a certificate is not awarded. In this 
situation, the sending college shall have an approved 
curriculum standard and an approved Program of 
Study. The receiving college may offer the course 
by virtue of the sending college's approval. 
(4) Service area agreement requirements, set forth in 23 
NCAC 2C .0107. are required when a class meets 
physically as a group supervised by faculty or staff 
outside the sending college's service area. 
{5) Sharing FTE's for Non-traditional Courses Jointly 
Ofleied by Colleges: 
(A) Definitions: 

LiJ Sending college— The college that 
designs, develops, and delivers the 
course and makes n a\ailable to 
students on any one or several media. 
Instructional cost incurred by a cojjege 
for courses delivered in a non- 
traditional 



of the students registered through the 
receiving college may be reported by 
the sending college unless otherwise 
agreed. 



f()rmat is 



eligible to 
Instructional 



m 



generate budgct/FTE 
cost includes salaries, fringe benefits, 
supplies, materials, access fees, license 
fees, broadcast and cither directly 
related production costs. Students who 
register through the sending college are 
included m ihe college's student hour 
reports which generate FTE. 
Receiving collcge--The college 
pro\ iding ph\sical facililies or services 
for students enrolled iji courses 
originating from the sending ceil lege. 
The c o 1 1 e g e incurs a lesser 
instructional cost than the sending 
college and [s eligible to repcirl 50 
percent of the FTE generated by the 
students who register lhrt)ugh the 
receiving college. The remaining FTE 



(iii) In situations where there are multiple 

sending ct'lleges or multiple receiving 

colleges or both, the FTE split noted in 

Subpart (e)(5)(A)(ii) ol' this Rule is 

applied. 

(f) Curriculum Student Work Experience and Clinical 

Practice. The following criteria apply to the reporting 

guidelines for students enrolled in curriculum work experience 

and clinical practice courses, exclusive of in-plant training as 

specified in 23 NCAC 2E .0402. Examples of student work 

experience include cooperative education, practicums. and 

internships. Clinical practice refers to work experience in 

health occupation programs. 

( 1 ) Student membership hours for student work 
experience and clinical practice shall not generate 
budget/FTE without prior approval by the 
Department of such activities through the 
appropriate curriculum standard. 

(2) Work Experience. Work experience for curriculum 
courses shall earn budget/FTE at the 100 percenl 
rate of assigned work experience hours and shall not 
exceed a maximum of 320 membership hours per 
student per semester. 

(A) These classes must shall be coordinated by 
college personnel paid with college 
instructional funds and may be located in one 
or more sites. 

(B) These classes mttirt shall be specified in the 
approved curriculum of the college consistent 
with the applicable curriculum standard. 

(C) Formal or informal apprenticeship on-the-job 
training activities of a cooperative skill 
training program funded under a special 
project allocation shall not earn budget/FTE. 
Classroom instruction funded with college 
regular budget instructional dollars for related 
or supplemental instruction as required by 
formal or informal apprenticeship programs 
shall earn budget/FTE. 

(3) Clinical Practice. Curriculum clinical practice, as 
defined in 23 NCAC 2E . 1 4. lA .0101. refers to 
clinical experience in health occupation programs 
which shall earn budget/FTE at the 100 percent rate 
for student membership hours. The applicable 
classes most shall be consistent with the curriculum 
standards policy as noted in Paragraph (a) of 23 
NCAC 2E .0203. 2E .0204. The maximum 
membership hours in a clinical experience which 
can be reported per student in a given semester is 
640. These classes m ust shall be supervised by 
college instructors qualified to teach in the particular 
program and who are paid with college instructional 



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PROPOSED RULES 



funds. These classes may be located in one or more 
sites. 

Aiahohn- G.S. J15D-5: S.L 1995. c. 625. 

.0324 REPORTING OF STUDENT HOURS IN 
MEMBERSHIP FOR EXTENSION 
(NON-CREDIT) CLASSES 

(a) Regularly Scheduled Classes. 

( 1 ) Del'inition of Regularly Scheduled Class. A class is 
considered to be regularly scheduled if it meets all 
of the following criteria: 

(A) assigned definite beginning and ending time; 

(B) specific predetermined days and time the 
class meets; 

(C) specific schedule included on the Institution 
Master Schedule or other official college 
documents; 

(D) class hours assigned consistent with official 
college documents; 

(E) identified class time and dates the same for all 
students registered for the class excluding 
clinical or work experience: 

(i) Classes which have a regularly 
scheduled lecture section and a 
non-regularly scheduled laboratory 
section will satisfy the criteria. The 
census date (10% point) shall be 
determined from the regularly 
scheduled portion of the class. 
Verification of student participation in 
the laboratory section of the class shall 
be available lor review. 

(ii) A student is considered absent if that 
student did not attend during the 
specified times or days the class was 
scheduled to meet. 

(2) Definition of Student Membership. A student is 
considered to be in class membership when the 
student meets all the following criteria: 

(A) enrolled as evidenced by payment of the 
applicable registration fees, or obtained a 
waiver as defined in Paragraph (a) of Rule 
.0203 of this Subchapter; 

(B) attended one or more classes held prior to or 
on the 10 percent point in the class; and 

(C) has not withdrawn or dropped the class prior 
to or on the 10 percent point of the class. 

(3) Student Membership Hour. A student membership 
hour is one hour of scheduled class or laboratory for 
which the student is enrolled. A college shall 
provide a minimum of 50 minutes of instruction for 
each scheduled class hour. A college rrray shall not 
report more hours per student than the number of 
class hours scheduled in official college documents. 
Colleges may shall not report more hours per 
student, excludint; non-traditional classes, than the 



number of hours specified in the instructors 
contract. 

(4) Calculation of Student Membership Hours for 
Regularly Scheduled Classes. Student membership 
hours are obtained by multiplying the number of 
students in membership at the 10 percent point in 
the class by the total number of hours the class is 
scheduled to meet for the semester as stated in 
official college documents. 

(5) Maintenance of Records of Student Membership 
Hours. Accurate attendance records shall be 
maintained for each class throughout the entire class 
or semester. Attendance records shall be signed by 
the instructor or lead instructor, verifying their 
accuracy, and shall be maintained by the college 
until released from all audits as provided in the 
Public Records Retention & Disposition Schedule 
for Institutions in the Community College System. 
Student membership hours shall be summarized in 
the Institution's Class Report and certified by the 
president or designee. For classes identified as 
non-traditional delivery, (see Paragraph (c) of this 
Rule) documentation of student contact hours prior 
to the 10 percent point shall be maintained in the 
same manner as the attendance records mentioned in 
this Rule. 

(b) Non-Regularly Scheduled Classes. 
( 1 ) Definition of Non-Regularly Scheduled Class. A 
non-regularly scheduled class may include any or all 
of the following: 

(A) a class where a definitive beginning and 
ending time is not determined; 

(B) a class offered in a learning laboratory type 
setting (see Subparagraph (b)(6) of this Rule 
for definition of learning laboratory); 

(C) a class self-paced in that the student 
progresses through the instructional materials 
at his/her own pace, and can complete the 
courses as soon as he/she has successfully 
met the educational objectives. Classes 
offered as independent study are generally 
offered in this manner; 

(D) a class in which a student may enroll during 
the initial college registration period or in 
which a student may be permitted to enroll at 
any time during the semester; or 

(E) any class not meeting all criteria for a 
regularly scheduled class as shown in 
Subparagraph (a)(1) of Rule .0.^24 of this 
Subchapter, is considered to be a 
non-regularly scheduled class for reporting 
purposes; 

(F) note classes defined as non-traditional (see 
Paragraph (c) of this Rule) which are 
identified as a separate student hour reporting 
category and are not subject to the provisions 
in Paragraph (b) of this Rule. 



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PROPOSED RULES 



(2) Definition of Student Membership. A student is 
considered to be in class membership when the 
student meets the following criteria: 

(A) enrolled as evidenced by payment of the 
applicable registration fees, or obtained a 

waiver as defined in Paragraph (a) of Rule (2) 

.0203 of this Subchapter; and 

(B) attended one or more classes. 

(3) Definition of Student Contact Hour. A student 
contact hour is one hour of student attendance in a 
class for which the student is in membership as 
defined in Subparagraph (b)(2) of this Rule. Sixty 
minutes shall constitute an hour. 

(4) Calculafion of Student Contact Hours for 
Non-Regularly Scheduled Classes. For these 
classes, actual time of class attendance is to be 
reported: 60 minutes shall constitute an hour. 
Student contact hours for these classes are the sum 
of all the hours of actual student attendance in a 
class in a given semester. 

(5) Maintenance of Records of Student Contact Hours. 
Accurate attendance records shall be maintained for 
each class throughout the entire class or semester. 
Attendance records shall be signed by the instructor 
or lead instructor, verifying their accuracy, and shall 
be maintained by the college until released from all 
audits as provided in the Public Records Retention 
and Disposition Schedule for Institutions in the 
Community College System. Student membership (3] 
hours shall be summarized in the Institution "s Class 

Report and certified by the president or designee. 
For classes identified as non-traditional delivery, 
(see Paragraph (c) of this Rule), documentation of 
student contact hours prior to the 10 percent point 
shall be maintained in the same manner as the 
attendance records mentioned in this Rule. (4) 

(6) Learning Laboratory. Learning laboratory programs 
consist of self-instruction using programmed text, 
audio-visual equipment, and other self-instructional 
materials. A learning laboratory coordinator has the 
function of bringing the instructional media and the 
student together on the basis of objective and 
subjective evaluation and of counseling, 
supervising, and encouraging persons working in 
the laboratory. Contact hours shall be calculated as 
noted in Subparagraph (b)(4) of this Rule. 

(c) Classes Identified as Extension Non-Traditional 
Delivery. 

( 1 ) Definition. Due to the methodology by which 
instruction is delivered, non-traditional delivery 
classes are not consistent with the definitions of 
regularly scheduled or non-regularly scheduled 
classes described in this Rule. Non-traditional 
delivery classes may be offered through media such 
as radio, television and other media as well as 
through correspondence or newspapers. The 



instruction delivered is pre-structured into 
identifiable units. Non-traditional delivery classes 
do not include classes identified as independent 
study which are not media based or are not 
correspondence or newspaper based. 
For those classes identified as non-traditional 
delivery, student attendance in class or in an 
orientation session, submission of a written 
assignment or a submission of examination is the 
basis for the determination of class membership at 
the 10 percent point of the class. Student 
membership hours in such classes shall be 
calculated by multiplying the number of students 
enrolled in the class times the number of 
instructional hours delivered which is determined as 
follows: 

(A) determine the number of hours of instruction 
delivered via non-traditional delivery; and 

(B) add the number of hours of class meetings, 
review sessions, etc.; 

(C) for those non-traditional continuing education 
classes which are approved by a local college 
staff review committee and the Director of 
Continuing Education Services for the 
Department, additional hours above the level 
noted in Parts (c)(2)(A) and (B) in this Rule 
may be approved commensurate with course 
content. 

Individual non-traditional classes which may be 
developed by a colleije or jointly by colleges and 
sent via media are subject to service area atireement 
requirements set forth in 22 NCAC 2C .0107 when 
the class meets physically as a aroup and is 
supervised by faculty or staff outside the sending 
college's service area. 

Sharini: FTEs for Non-traditional Classes Jointly 
Offered by Colleges: 
(A) Definitions: 

(i) Sending college— The college that 
designs, develops, and delivers the 
course and makes it available to 
students on any one or several media. 



Instructional cost incurred by a college 
for courses delivered in a non- 
traditional format is eligible to 
generate budget/FTE. Instructional 
cost includes salaries, fringe benefits. 
su pplies, materials, access fees, license 
fees, broadcast and other directly 
related production costs. Students who 
register through the sending college 
shall be included in that college's 
student hour reports which generate 
FTE. 
(ii) Receiving college--The college 
olfering physical facilities or ser\'ices 



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309 



PROPOSED RULES 



for students enrolled in courses 

originating from the sending college. 

This college incurs a lesser 

instructional cost than the sending 

college and is eligible to report 50 

percent of the FTE generated by the 

students who register through the 

receiving college. The remaining FTE 

of the students registered through the 

receiving college may be reported by 

the sending college unless otherwise 

agreed upon. 

(iii) In situations where there are multiple 

sending colleges or multiple receiving 

colleges or both, the FTE split noted in 

Subpart (C)(4)(A)(ii) of this Rule is 

applied. 

(d) Extension Student Work Experience and Clinical 

Practice. The following criteria apply to the reporting 

guidelines for students enrolled in extension work experience 

and clinical practice courses, exclusive of in-plant training as 

specified in 23 NCAC 2E .0402. To be eligible for approval, 

these work experience or clinical practice courses shall be 

required by a licensing agency or accrediting body. Examples 

of student work experience include cooperative education, 

practicums, and internships. 

(1) Student membership hours for student work 
experience and clinical practice shall not generate 
budget FTE without prior approval of such activities 
by the Department. Approval of student work 
experience and clinical practice approved prior to 
November 1, 1983 by the Department shall be 
resubmitted for reapproval. When the number of 
approved student work experience membership 
hours increases by more than 30 percent per course, 
a new request for approval shall be submitted. 

(2) Work Experience. Work experience for extension 
courses shall earn budget/FTE at the 100 percent 
rate for student membership hours, as required by a 
licensing agency or accrediting body, and shall not 
exceed a maximum of 320 membership hours per 
student per semester. A maximum of 320 hours 
may be reported per student per year for a given 
l ice n sing/acc r editing licensing or accrediting 
requirement. 

(A) These classes shall be coordinated by college 
personnel paid with college instructional 
funds and may be located in one or more 
sites. 

(B) Formal or informal apprenticeship on-the-job 
training activities of a cooperative skill 
training program funded under a special 
project allocation shall not earn budget/FTE. 
Classroom instruction funded with regular 
budget instructional dollars for related or 
supplemental instruction as required by 
formal or informal apprenticeship programs 



shall earn budget/FTE. 
(3) Clinical Practice. Clinical practice refers to clinical 
experience in health occupation courses which shall 
earn budget/FTE at the 100 percent rate for student 
membership hours, as determined in Subparagraph 
(a)(3) of this Rule, and shall not exceed a maximum 
of 320 membership hours per student per semester 
unless North Carolina licensure or program 
accreditation standards require additional hours. In 
such cases, work activity hours shall earn 
budget/FTE at the 100 percent rate in accordance 
with licensure or program accreditation standards up 
to a maximum of 640 membership hours per student 
per semester. These classes shall be supervised by 
college instructors qualified to teach in the particular 
program and who are paid with college instructional 
funds. These classes may be located in one or more 
sites, 
(e) The Adult High School Diploma work experience shall 
not exceed 160 hours per student. 

Authontx G.S. 115D-5: S.L. 1995. c. 625. 



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TEMPORARY RULES 



The Codifier of Rules has entered the foUowing temporary riilels) in the North Carolina Administrative Code. Pursuant to 
G.S. 150B-21 .l{e), publication of a temporary rule in the North Carolina Register senses as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 1 - DEPARTMENT OF ADMINISTRATION 

Rule-making Agency: Department of Administration 

Rule Citation: J NCAC 40 .010J-.0W3: .0201-.0204 

Effective Date: August 11. 1999 

Findings Reviewed by Beecher R. Gray: Codifier 
determined tliat agency findings did not meet criteria for 
temporary rule. Not a recent act; inadequate showing of 
serious and unforeseen threat to the public health, safety, or 
welfare. 

Authority for the rule-making: G.S. 1 15C-566 

Reason for Proposed Action: Pursuant to S.L 1997-507 and 
1998-212. sec. 9.21 . the General Assembly has required the 
Division of Non-public Education to assist in drafting rules to 
implement a new statute requiring driving eligibility 
certificates { DEC s) for all students seeking learner's permits 
and driver's licenses. Rules are required to be adopted by the 
agency to implement the provisions for nonpublic schools and 
home schools under the Division of Non-public education. 
This is a new agency to the Department and the 1998 
amendment to the law has required changes to the proposed 
rules in order to completely implement the amended statute. 
Without the temporary rules being in place, the statutoiy 
scheme for requiring DECs would not he able to be put in 
force, with potential for improperly licensed drivers on the 
roads. These rules have been examined and utilized over the 
course of a year by the nonpublic school area and are deemed 
workable. 

Comment Procedures: All persons wishing to comment on 
these proposed rules may do so by sending their written 
comments to R. Glen Peterson, General Counsel. Department 
of Administration, 116 West Jones Street, Raleigh. NC 27603- 
8003. 

CHAPTER 40 - NONPUBLIC EDUCATION 

SECTION .0100 - GENERAL PROVISIONS 

.0101 PURPOSE 

The Division of Nonpublic Education is the agency of State 
government responsible for administering the prtnisions of 
Article 39 of G.S. 1 15C and is the "duly authorized 
representative of the State" for such purposes, as defmed in 
G.S. 115C-563(b). 



Histoiy Note: Authority G.S. 115C-563: 115C-566; 

Temporary Adoption Eff. August 4, 1998: 

Temporary Adoption E.xpired May 29, 1999: 

Codifier determined that agency findings did not meet criteria 

for temporar}' rule; 

Temporan- Adoption Eff. August 11, 1999. 

.0102 ORGANIZATION 

The Division of Nonpublic Education is located in the 
Department of Administration pursuant to the assignment of 
said divisi(^n from the Office of the Governor, as designated 
by order of the Governor dated May 20. 1998. and effective 
July 1. 1998. 

Histoiy Note: Authority G.S. 115C-563: 115C-566: 143B- 

12: 

Temporaiy Adoption Eft'. August 4. 1998: 

Temporary Adoption Expired May 29, 1999: 

Codifier determined that agency findings did not meet criteria 

for temporaiy rule: 

Temporary Adoption Eff. August 11. 1999. 

.0103 DEFINITIONS 

The following definitions shall apply throughout this 
Chapter: 

(1 ) "Conventional nonpublic school " means a school 
operating under either Part 1 or Part 2 of Article 39. 
G.S. 1I5C. 



01 

ill 



(4) 



"Division" means the Division of Nonpublic 
Education, except where otherwise identified. 
"Educational program" means an alternative 
academic program of instruction fciund by a court 
prior to July L, 1998. to comply with the 
Compulsory Attendance Law. Part 1 of Article 26. 
G.S. 115C. 

"Home school" means a nonpublic school operating 
under Part 3 of Article 39. G.S, 1 1 5C. 



History Note: Authority G.S. 115C-547 through 1 15C-566: 

Temporaiy Adoption Eff. August 4, 1998: 

Temporaiy Adoption Eff. November 25, 1998: 

Temporaiy Adoption E.xpired May 29, 1999; 

Codifier determined that agency findings did not meet criteria 

for temporaiy rule; 

Temporan Adoption Eff. August 11. 1999. 

SECTION .0200 - DRIVING ELIGIBILITY 
CERTIFICATES 



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311 



TEMPORARY RULES 



.0201 DEFINITIONS 

For the purposes oi' OS, 20-11. G.S. 20-13.2(cl) and G.S. 
1 15C-566, the following definitions shall apply: 

(1 ) "High school diploma or its equivalent" means and 
includes the General Equivalency Diploma and the 
adult high school diploma. 

(2) "Making progress toward obtaining a high school 
diploma or Us equivalent" means that the student 
must meet standards established by the 
administrator, or the administrator's designee, in the 
case of a conventional nonpublic school or by_ the 
person who provides the academic instruction m the 
case of a home school or an educational program. 

(3) "Substantial hardship" means a demonstrable burden 
on the student or the student's family as evidenced 
by circumstances such as the following: 

(a) The parent/guardian is unable to drive due to 
illness or other impairment and the student is 
the only person of driving age in the 
household. 

(b) The student requires transportation to and 
from a job that is necessary to the welfare of 
the student's family and the student is unable 
to obtain transportation by any means other 
than drnmg. 

(c) The student has been unable to attend a 
conventional nonpublic school due to 
documented medical reasons, but the student 
IS demonstrating the ability to maintain 
progress toward obtaining a high school 
diploma or its equivalent. 

(4) A "student who cannot make progress toward 
obtaining a high school diploma or rts equivalent" 
shall mean a student who has been identified b\ the 
administrator, or the admmistrator's designee, in the 
case of a conventional nonpublic school or by the 
person who provides the academic instruction m the 
case of a home school or an educational program, as 
not having the capacity to meet the requirements for 
a high school diploma or its equivalent due to a 
disability. 

Histon- Note: A utlwnty G. S. 1 15C-566: 

Temporary Adoption Ejf. August 4. 1998: 

Temporary Adoption Ejf. November 25. 1998: 

Temporary Adoption Expired May 29. 1 999: 

Codifier determined that agency findings did not meet criteria 

for temporary rule: 

Temporan' Adoption Eff. August 11. 1999 . 

.0202 ISSUANCE OF DRIVING ELIGIBILITY 
CERTIFICATES 

(a) Each con\entional nonpublic school, home school and 
educational pr(igram shall be responsible for the issuance of 
driving eligibility certificates on forms which must be supplied 
only by the Division, and which are non-transferable to any 



other conventional nonpublic school, home school, educational 
program, or public school, 
(b) Before any conventional nonpublic school or home 



school can issue a driving eligibility certificate, that school 
must have on file with the Division a currently valid Notice of 
Intent to Operate and must be in compliance with all laws and 
regulations applicable to conventional nonpublic schools or 
home schools which enroll students subject to compulsory 
attendance laws. Once the school is in compliance with such 
laws and regulations as apply to it. the appropriate forms may 
be requested from, and supplied by. the Division. 

(c) Before any educational program can issue a driving 
eligibility certificate, that program must have on file with the 
Division: 

( 1 ) A letter stating the name of the educational program. 
its address and telephone number, and contact 
person: and 

(2) Legal documentation in the form of a certified court 
order or judgment that the program was found to be 
in compliance with the Compulsory Attendance 
Law. Part 1 of Article 26. G.S. 1 15C. p rior to July 1. 
1998. 

Once the educational program is in compliance with such laws 
and regulations as apply to it. the appropriate fonns may be 
requested from, and supplied by^ the Division. 

(dj Notwithstanding i NCAC 40 .02Q2(b). a]] nonpublic 
schools enrolling only students who are age 15. 16 or JJ? may 
not request driving eligibility certificate forms from the 
Division until after the school's currently valid Notice of 
Intent to Operate has been on file with the Division for at least 
six calendar months. This pro\ision shall not apply in the case 
of any student that is newlv resident in the State of North 
Carolina within the 30 days immediately preceding his request 
for a driving eligibility certificate from a school affected by 
this provision. 

(e) A nonpublic school student under the age of J_8 who 
wishes to obtain a limited learner's permit, a limited 
provisional license or a full provisional license under G.S. 20- 
1 1 must first request and obtain a driving eligibility certificate 
signed b\ the administrator, or the administrator's designee, in 
the case of a conventional nonpublic school or the person who 
provides the academic instruction in the case of a home school 
or an educational program. 

(f) Before a nonpublic school student is eligible to receive a 
driving eligibility certificate, the student must be currently and 
properly enrolled in a nonpublic school which is meeting all 
the appropriate requirements of Article 39 of G.S. 1 1.'>C or in 
an educational program at the time the certificate is issued and 
meet one of the following requirements: 

( 1 ) The student is making prctgress toward obtaining a 
high school diploma or its equi\alent. 

(2) The student will ha\e a substantial hardship placed 
on the student or tlie student's family if the 
certificate is not issued. 

(3) The student is a student who cannot make progress 
toward obtaining a high school diploma or Us 
equivalent. 



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(g) If a student is denied a certificate, the ciiief 
administrator of the nonpublic school or the person whci 
provides the academic instruction m the case oi' an educational 
program shall inform the student of the school's or the 
program's decision and the availability and details of the 
school's or program's appeals process. 

History Note: Authoritx G.S. I15C-566; 

Temporaiy Adoption Ejf. Aiii>ust 4. 1998: 

Temporary Adoption Ejf. November 25. 1998: 

Temporaiy Adoption Expired May 29, 1999: 

Codifier detennined that agency findings did not meet criteria 

for temporary rule: 

Temporan Adoption Eff. August II. 1999. 

.0203 REVOCATION OF DRIVING ELIGIBILITY 
CERTIFICATES 

(a) Each nonpublic school and educational program shall 
revoke a driving eligibility certificate held by one of its 
students, no matter whether it was issued by that school or 
program or not: 

( I ) when the student fails to meet the requirements for 



the certificate set out m I NCAC 40 .0202 



12] 



when the student is no longer enrolled in the schciol 
or program and does noi possess a high school 
diploma or its equivalent upon the student's romo\al 
from the schools' s or program's rolls. H the student 
will not be enrolled m another schcKtl (public, 
conventional nonpublic, home schcxil. educational 
program or community college). 

(b) Upon revocation of a certil'icale. the chief administrator 
of the school or program shall send written notification of the 
revocation to the Divisic^n within five calendar days of the 
revocation, unless the student prt)lcsts the decision. If the 
Appeals Committee upholds the schcnil's or program's 
decision to revoke the cerlificale. the notification to the 
Division will be made wilhm live days from the school's or 
program's receipt of the committee's decision. 

(c) The notification to the Division shall include: 

( 1 ) The student's legal name (first, middle and last 
name as on the student's birth certificate); 
The student's social security number; 
The student's residence address (including street, 
city and zip code); 
The student's date ot birth: 
The student's gender; 
The student's race; 

The student's learner's pemiil or driver's license 
number; 

(8) The name of the parent/guardian with whom the 
student is living; 

(9) A statement of the reasons for the revocation of the 
certificate; 

(10) The date of the student's ineligibility ov removal 
from the school's or program's rolls; 

(11) The type of nonpublic school, whether c(mventional 



0} 

ill 

14] 
ill 
16] 
17] 



or home school, or educational program; 

(12) The name of the nonpublic school or educational 
program; 

(13) The county in which the nonpublic school or 
educational projjram is located; 

( 14) The name of the chief administrator of the nonpublic 
school or educational program. 

(d) Within five calendar days of the Division's receipt of 
the written notification of revocation from the nonpublic 
school or educational program, the Director of the Division or 
the Director's designee, shall inform the North Carolina 
Division of Motor Vehicles of the revocation. 

(e) If a student's certificate is revoked, the chief 
administrator of the nonpublic school or educational program 
shall inform the student oi the schtml's or program's decision 
and the availability and details of the school's or program's 
appeals process. 

Histoiy Note: Authority G.S. I I5C-566; 

Temporaiy Adoption Eff. August 4. 1998: 

Temporaiy Adoption Eff. November 25. 1998: 

Temporaiy Adoption E.xpired May 29. 1999: 

Codifier determined that agency findings did not meet criteria 

for temporary rule: 

TemiJoran' Adoption Eff. August If 1999. 

.0204 STUDENT APPEALS PROCESS 

(a) Each conventional nonpublic school and educational 
program thai enrolls students that are at least \5 years ot' age 
shall establish a Driving Eligibility Ceilificate Appeals 
Committee to receive and act upon student protests that a 
driving eligibility certificate was improperly denied or 
revoked. All student protests shall he made within five days of 
the school's or program's decisit)n and directed to the chief 
administrator of the conventional nonpublic school or 
educational program. The Appeals Committee shall: 

( 1 ) Be appointed by and serve at the pleasure of the 
administrator oi' tfie conventional nonpublic school 
or educational program, or liie administrator's 
designee; and 

(2) Consist of at least three members, each of which 
shall be a member o 



giiverning board, 



the school's or program's 

administration or staff, or a 

parent/guardian with a child cunently enrolled in the 
school or program, 
(b) The Division shall establish a Home Schools Driving 
EligibilitN Cerlificale Appeals Committee exclusively to 
receive and act upon student protests that a driving eligibility 
certificate was improperly denied or revoked by a home 
school. All home school sludeni protests shall lie made within 
tl ve days of die school's decision and directed to ifie Director 
of tlie Division or Uie Director's designee, at Division of 
Nonpublic Education. Departmcnl oi Administration. 530 
North Wilminglon .Street. Raleigh, North Carolina 27604- 



198. 



The Home Schools Driving Eligibility Certificate 



Appeals Committee shall: 



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313 



TEMPORAR Y RULES 



(1) Be appointed by, and serve on a voluntary basis at 
the pleasure of. the Director of the Division or the 
Director's designee; and 

(2) Consist of at least three members, each being the 
administrator of a home school currently operating 
under Part 3. Article 39. G.S. 1 15C. The members 
shall not receive per diem or an\^ other type of 
compensation for their service. The Director, or the 
Director's designee, shall appoint a chairperson 
from the committee's membership. The chairperson 
shall then direct the decision-making work of the 
committee. 

(c) All Driving Eligibility Certificate Appeals Committees 
shall: 

( 1 ) consider the written protest of the student as to why 
the driving eligibility certificate was improperly 
denied or revoked; 

(2) decide the protest based on whether the 
requirements for the certificate were met or whether 
the certificate was properly revoked; 

(3) render its decision within 30 calendar days of 
receipt of the written protest from the student, and 
promptly notify the student and the chief 
administrator of the school or program of the 
decision. 

(d) The decision of the appropriate appeals committee shall 
be final. 

History- Note: Authority G.S. 1J5C-566: 

Temporaiy Adoption Eff. August 4. 1998; 

Temporary Adoption Ejf. November 25. 1998; 

Temporaiy Adoption Expired May 29. 1999; 

Codifier determined that agency findings did not meet criteria 

for temporary rule; 

Temporan' Adoption Eff. August 11, 1999. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 



Rule-making Agency: Division ofFacilily Sen ices 

Rule Citation: 10 NCAC 3R .6203, .6209, .6221 

Effective Date: July 22. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 131E-1 76(25); 131E- 
177(1); 131 E- 183(b) 

Reason for Proposed Action: That the general welfare and 
protection of lives, health, and property of the people of this 
State require that new institutional health services to be 
offered within this State be subject to review and evaluation as 
to need, cost of service, accessibility to serxnces, quality of 
care, feasibility, and other criteria as determined by 
provisions of this Article or by the North Carolina Department 
of Human Resources pursuant to provisions of this Article 
prior to such services being offered or developed in order that 
only appropriate and needed institutional health serx'ices are 
made available in the area to he serxed. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGULATIONS 

SECTION .6200 - PLANNING POLICIES AND NEED 
DETERMINATIONS FOR 1999 

.6203 CERTIFICATE OF NEED REVIEW 
SCHEDULE 

The agency has established the following review schedules 
for certificate of need applications. 

(1) Inpatient Rehabilitation Beds (in accordance with 
the need determination in 10 NCAC 3R .6208) 







CON Beginning 


Health Service 


Area{HSA) 


Review Date 


I 




August 1. 1999 


II 




August 1, 1999 


V 




September 1, 1999 


VI 




September 1. 1999 



(21 Ambulatory Surgical Facilities (in acco r dance w i th the n eed dete iiiii nation in 10 NCAC 3R .6209) 



Ambulato r y Surgery 
Serv 



CON Be ginn i n g 



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9 (Dmnswick. Columbus. Duplin. New Ha n ove r . P en d er ) S ep t e mbe r 1. 199 * J 



(2)(-3l Open Heart Surgery Services (in accordance with the need detennination in 10 NCAC 3R .6210) 



Hospital 



CON Beginning 
Re\ iew Date 



Hospitals without open heart surgery services which acquired 

heart-lung bypass machines before March 18, 1993 April 1, 1999 



(3)(4l Heart-Lung Bypass Machines (in accordance with the need determination in 10 NCAC 3R .621 



Hospital 
Service System 



CON Beginning 
Review Dale 



Cumberland Countv 



March 1. 1999 



(4)t5) Fixed Cardiac Catheterization Equipment (in accordance with the need determination in 10 NCAC 3R .6212) 



Hospital 


CON Beginning 


Service System 


Review Date 


Wake County 


May 1. 1999 


Mecklenburg County 


February 1. 1999 


Forsyth County 


February 1. 1999 


Moore County 


July 1. 1999 


New Hanover County 


July 1. 1999 


Pitt County 


July 1. 1999 


Catawba County 


October 1. 1999 


Buncombe County 


October 1. 1999 


Guilford County - Greensboro Area Only 


October 1. 1999 


Durham County 


November 1. 1999 


Orange County 


November 1. 1999 



(5)(fr) Radiation Oncolog\ Treatment Centers (in accordance with the need determination in 10 NCAC 3R .6220) 



Radiation Oncology Treatment 
Center Service Area 



CON Beginning 
Review Date 



6 (Cleveland. Gaston. Lincoln. Rutherford) April 1.1999 

7 (Anson. Mccklenburiz. Untion) October 1. 1999 



(6)t7l Magnetic Resonance Imaging Scanners (in accordance with the need determination in 10 NCAC 3R .6221 ) 



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Magnetic Resonance Imaging 
Scanners Service Area 



CON Beginning 
Review Date 



5 (Alexander. Burke, Caldwell. Ca ta w b a. Lincoln) 

7 (Henderson. Polk. Transylvania) 

15 (Davidson, Guildford. Randolph, Rockingham) 

+8 (Cum b e rl and. Hoke, Moore. Robeson, Sainpson) 

23 (Beaufort. Bertie, Hyde, Greene, Martin, Pitt. Washington) 

24 (Edgecombe. Halifax. Nash. No rt hampton) 



October 1. 1999 
April 1. 1999 
October 1. 1999 
September 1. 1999 
March 1. 1999 
September 1. 1999 



(TjrtH Nursing Care Beds (in accordance with the need determination in 10 NCAC 3R .6222) 





CON Beginning 


County 


Review Date 


Ashe 


April 1. 1999 


Catawba 


April 1. 1999 


Henderson 


October 1. 1999 


McDowell 


December 1. 1999 


Caswell 


June 1. 1999 


Davie 


August 1. 1999 


Guilford 


June 1. 1999 


Randolph 


December 1. 1999 


Mecklenburg 


August 1. 1999 


Person 


March 1. 1999 


Wake 


September 1. 1999 


Columbus 


September 1. 1999 


Pender 


March 1. 1999 


Sampson 


March 1. 1999 


Carteret 


September 1. 1999 


Perquimans 


March 1. 1999 



(8)f9l Chemical Dependency (Substance Abuse) Beds (in accordance with the need determination in 10 NCAC 3R .6228) 
(a) Adult Treatment Beds 



Mental Health 
Planning Rciiion 



CON Beginning 
Review Date 



Eastern Reiiion 



December 1. 1999 



(b) Adult Detox-Onlv Beds 



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Mental Health Planning Areas 




CON Beginning 
Review Date 


1 


(Cherokee, Clay, Graham, Haywood, Jackson, Macon 


Swain) 


May 


. 1999 


4 


(Henderson, Transylvania) 




May 


. 1999 


5 


(Alexander, Burke, Caldwell, McDowell) 




May 


, 1999 


6 


(Rutherford, Polk) 




May 


, 1999 


11 


(Rowan, Stanly, Cabarrus, Union) 




May 


. 1999 


14 


(Rockingham) 




May 


, 1999 


16 


(Alamance, Caswell) 




May 


, 1999 


17 


(Orange, Person, Chatham) 




May 


. 1999 


19 


(Vance, Granville, Franklin, Warren) 




May 


, 1999 


20 


(Davidson) 




May 


, 1999 


22 


(Bladen, Columbus, Robeson, Scotland) 




May 


, 1999 


25 


(Johnston) 




May 


, 1999 


26 


(Wake) 




May 


, 1999 


30 


(Wayne) 




May 


, 1999 


31 


(Wilson, Greene) 




May 


, 1999 


32 


(Edgecombe, Nash) 




May 


, 1999 


33 


(Halifax) 




May 


. 1999 


34 


(Carteret. Craven, Jones. Pamlico) 




May 


. 1999 


35 


(Lenoir) 




May 


. 1999 


37 


(Bertie, Gates. Hertford, Northainpton) 




May 


. 1999 


38 


(Beaufort, Hyde, Martin, Tyrrell, Washington) 




May 


, 1999 


39 


(Camden. Chowan. Currituck, Dare, Pasquotank, Perquimans) 


May 


, 1999 


40 


(Duplin. Sampson) 




May 


. 1999 



(9)<-fO) Intermediate Care Facility Beds for Mentally Retarded (m accordance with need determinations in 10 NCAC 3R .6229) 



Menial Health Planning Area 


CON Beginning 
Review Date 


8 (Gaston, Lincoln) 
29 (Onslow) 


May 1, 1999 
May 1, 1999 



0]<-Hi Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another 
schedule has been specified in Items ( 1 ) through (9) of this Rule. 



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317 



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CON Beginni 
Review Date 


ng 


HSA 
I, II. Ill 






HSA 
IV, V, VI 


January 1 




- 






- 


February 1 




A, E, G, I, J 






G 


March 1 




-- 






A, B, E, H, I 


April 1 




B, F, H, I 






-- 


May 1 




C 






C, F. I, J 


June 1 




A,B, D,I 






D 


July 1 




- 






A.I.J 


August 1 




B,E,I 






- 


September 1 




- 






B, E.H.I 


October 1 




A, B, F, H, I, J 


H(Om 


'ology 


Center / Linear Accelerator Only) 


November 1 




-- 






A, F.I.J 


December 1 




B.C. D.I 






C.D.I 



History Note: Authont}- G.S. I3IE-176(25}: ]3IE-I77(1): 13IE-183{b): 
Teiuponiiy Adoption Ejf. Januaiy I. 1999: 
Temporary- Amendment Eff. Julx 22. 1999. 

.6209 AMBULATORY SURGICAL FACILITIES NEED DETERMINATION (REVIEW CATEGORY E) 

It i s determined that the r e is a ne e d fo r one additio n al A mh ulatc i ry Surgical Facility in the A m bulatory Su r gical Pla n n in g Area 
listed m this Rule. It is determined that there is no need tor additional Ambulatory Surgical Facilities in any other ainbulatory 
surgical facility planning area. 



Ambulatory Surgical Facil i ty Planning Area 



Am b ulatory Surgical 
Fa c ilities Needed 



Brunswick. Columbus. Duplin. New Hanover, 
and Pende r Co unti es 



History Note: Autlwrity G.S. 131 E-]76(25): 131E-177{I): ]31E-183(b): 
Temporaiy Adoption Eff. Januaiy 1, 1999; 
Temporarx Amendment Eff. Julx 22. 1999. 

.6221 MAGNETIC RESONANCE IMAGING SCANNERS NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is a need for seven three additional fixed Magnetic Resonance Imaging (MRI) scanners in the 
following MRI Scanners Service Areas. It is determined that there is no need for an additional fixed MRI scanner in any other 
service area in the Stale. 



MRI Scanners Service Areas 
(Constituent Counties) 



MRI Scanners 
Need Determination 



5 (Alexander. Burke. Cald w e l l. Catawba & Lincoln) 

7 (Henderson. Polk & Transylvania) 

\'^ (Davidson. Guildford, Randolph & Rockingham) 



J: 
1 
1 



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t8 (Cumberland, Hoke, Moore. Robeson & Sampson) 

23 (Beaufort. Bertie. Hyde. Greene. Martin. Pitt & Washington) 

24 (Edgecombe, Hali f ax, Nash & Northampton) 



2 
1 



History Note: Authority G.S. 131E-]76(25): 131E-177{n: ]3IE-I83(b): 
Temporar}- Adoption Eff. January 1. 1999: 
Temporan- Amendment Eff. Jiilx 22. 1999. 



Rule-making Agency: DHHS - Division of Medical 
Assistance 

Rule Citation: 10 NCAC 26B .0113: 26M .0301 -.0305 

Effective Date: August 20. 1999 

Findings Reviewed and Approved by: Julian Mann. Ill 

Authority for the rule-making: G.S. 108A-25(h): 108-54: 
42C.F.R.44I. Subpart D 

Reason for Proposed Action: This action was necessitated 
by the termination of The Carolina Alternatives Waiver and 
the exclusion of state hospitals as eligible providers. 

Comment Procedures: Written comments concerning this 
rulemaking action must be submitted to Portia W. Rochelle, 
Rule-making Coordinator, Division of Medical Assistance, 
1985 Umstead Drive. 2504 Mail Senice Center Raleigh, NC 
27699-2504. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL ASSISTANCE 
PROVIDED 



SECTION .0100 - GENERAL 



.0113 



NC MEDICAID CRITERIA FOR CONTINUED 
ACUTE STAY IN AN INPATIENT 
PSYCHIATRIC FACILITY 

The following criteria apply to individuals under the age of 
2 1 in a psychiatric hospital or in a psychiatric unit of a general 
hospital, and to individuals aged 21 through 64 receiving 
treatment in a psychiatric unit of a general hospital. These 
criteria shall be applied after the initial admission period of up 
to three days. To qualify for Medicaid coverage for a 
continuation of an acute stay in an inpatient psychiatric facility 
a patient must meet each of the conditions specified in Items 
( 1 ) through (4) of this Rule. To qualify for Medicaid coverage 
for continued post-acute stay in an inpatient psychiatric facility 
a patient must meet all of the conditions specified in Item (5) 



(2) 
(3) 



of this Rule. 

(I) The patient has one of the following: 

(a) A current DSM-IV, Axis I diagnosis; or 

(b) A current DSM-IV. Axis II diagnosis and 
current symptoms/behaviors which are 
characterized by all of the following: 

(i) Symptoms/behaviors are likely to 
respond positively to acute inpatient 
treatment; and 
(ii) Symptoms/behaviors are not 
characteristic of patient's baseline 
functioning; and 
(iii) Presenting problems are an acute 
exacerbation of dysfunctional behavior 
patterns which are recurring and 
resistive to change. 
Symptoms are not due solely to mental retardation. 
The symptoms of the patient are characterized by: 

(a) At least one of the following: 
(i) Endangerment of self or others; or 

(ii) Behaviors which are grossly bizarre, 
disruptive, and provocative (e.g. feces 
smearing, disrobing, pulling out hair); 
or 

(iii) Related to repetitive behavior disorders 
which present at least five times in a 
24-hour period; or 

(iv) Directly result in an inability to 
maintain age appropriate roles; and 

(b ) The symptoms of the patient are characterized 
by a degree of intensity sufficient to require 
continual medical/nursing response, 
management, and monitoring. 

The services provided in the facility can reasonably 
be expected to improve the patient's condition or 
prevent further regression so that treatment can be 
continued on a less intensive level of care, and 
proper treatment of the patient's psychiatric 
condition requires services on an inpatient basis 
under the direction of a physician. 
Except — for — p atie n ts — r e c ei v i ng — s e rvic es — th r ough 
Carolina Alternatives and except for patients in st ate 
hospita l s whe r e the discha r ge requi r ements a rc se t 
out in 10 NCAC 15 A. i n In the event that not all of 
the requirements specified in Items (1) through (4) 
of this Rule are met. reimbursement mav be 



(4) 



(5) 



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319 



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provided for patients through the age of 17 for 
continued stay in an inpatient psychiatric faciHty at a 
post-acute level of care to be paid at the High Risk 
Intervention Residential High (HRI-R High) rate if 
the facility and program services are appropriate for 
the patients treatment needs and provided that all of 
the following conditions are met: 

(a) The psychiatric facility has made a referral 
for case management and after care services 
to the area Mental Health, Developmental 
Disabilities. Substance Abuse (MH/DD/SA) 
program which serves the patients county of 
eligibility. 

(b) The area MH/DD/SA program has found that 
no appropriate services exist or are accessible 
within a clinically acceptable waiting time to 
treat the patient in a community setting. 

(c) The area MH/DD/SA program has agreed 
that the patient has a history of sudden 
decompensation or significant regression and 
experiences weakness m his or her 
environmental support system which are 
likely to trigger a decompensation or 
regression. This history must be documented 
by the patient's attending physician. 

(d) The inpatient facility must have a contract to 
provide HRI-R. High with the area 
MH/DD/SA program which serves the 
patient's county of eligibility, or the area 
program's agent. Psychiatric hospitals or 
psychiatric units in general hospitals are 
eligible to establish contract relationships 
with all non-Carolina Alternatives area 
MH/DD/SA programs or their agents m 
accordance with statutory procedures as 
defined in G.S. 122C-142. 

(e) The Child and Family Services Section of the 
Division of Mental Health. Developmental 
Disabilities, Substance Abuse Services shall 
approve the use of extended HRI-R. High, 
based on criteria in Sub-items (a)-(c) of this 
Item. 

(f) The area MH/DD/SA program shall approve 
the psychiatric facility for the provision of 
extended HRI-R High, receive claims from 
the inpatient facility, and provide 
reimbursement to the facility in accordance 
with the terms of its contract. 

Histon- Note: Authority G.S. 108 A- 2 5(b): 1 08 A -54: 42 

C.F.R. 441. Subpart D: 

EJf: Jainian- I. 1998: 

Temporurx Amendment Eff. Ausnst 20. 1999. 

SUBCHAPTER 26M - MANAGED CARE AND 
PREPAID PLANS 



SECTION .0300 - MENTAL HEALTH MANAGED 
CARE - CAROLINA ALTERNATIVES 

.0301 PROGRAM DEFINITION AND DEFINITION 
OF TERMS 

tal The Division of Medical Assistance (DMA) shall 
con t ract with the Division of Me nt al H e alth, Dev e lopmental 
Disa b ili tie s and Substa n c e Ab u s e S er vic e s (DMH/DD/SAS) to 
coord i nate — and — d e liv er . — thr oug h — T^rea — Mental — Health 
D e velopmental Disabiliti e s, and Substance Abuse Authorities 
(Ar e a Authorities) t hat choose to pailicipate in the program, 
mental health and substance abus e se r v i ces to childr e n age 
through 17 who are e ligible to rec e ive Medicaid i n cou nties 
s er ved by the Ar e a Autho r ity. — The pr ogram is he r ei n aft e r 
referre d t o as Ca r olina Alte r natives. 

ftrl DMA shall make payments to DMH/DD/SAS for 



m ental health and subs t ance abuse servi 



tai neaitn and suns t ance anuse services provided t hr ougn 
the — Ca r olina — Alternatives — program — for — each — Ca r ol in a 
Alternativ e s e nr oll e e. DMH/DD/SAS shall m ake paym e n t s to 
each part i cipating A re a Au t ho r it y fo r e a ch en r ollee fo r which 
the Area Authority is responsible. 

(d The following ICD-9-CM diagnosis codes are c overed 
by Carolina Alternat i ves : 

(+1 290.0-298.90. 299.10-314.01; and(2)Vl 1-Vl 1.9, 
V4 -V 40 .9. 
(th ICD-9-CM - diagnosis codes fo r the following conditions 
are not covered by Carolina Alternatives : 
(-H Men t al re t a r da ti o n ; 

iH Autism a n d p er vasive dev e lopmental disorde r s: 
t5i Specific developmental diso r ders; o r 
t4l "V" cod e s for social conditions. 
tei Fo r purposes of t h is Section, the following definitions 
apply: 

(+) "Area Autho r ity" means area authority as defined in 
€rS-. — I22C-3. — Area Aut h o ri ty also means "area 
program" as defined in 10 NCAC 14K . 103(0(9). 
"E nro ll e e" means any child, age through — H^ 
whose e l i gi b ility fo r M e d i ca i d i s established in a 
county se r ved by an Area Autho r ity that chooses to 
p a i licipate in the Carolina Alternatives p r ogram. 
E nr oll m e n t occurs automatically for any enroll ee o n 
the date the .^ r ea Autho r ity beg i ns participating in 
the Carolina Alternative prog r a m , o r on the date any 
ch ild ag e to — 17 is subsequently ce r tified o r 



ei 



rec e rt ified to be el i gible for Medicaid in a county 
served — by — an — A r ea — Autho r it y — that — chooses — to 
pailicipate in the Carolina Alt c r n ativ ' es program. 
tJ) ICD-9-CM code book is b ased upon th e official 
version — of — the — Internat i onal — Classificat i on — of 
Diseases. N i nth Re\ ' ision. Cli ni cal Modificat i on. 
Fourth Edi t ion, issued by the U.S. Department of 
Health a n d Huma n Services. 



t4l "P r og r a m 

t5l 



means — the — Ca r oli n a — Alternatives 



p r ogram. 

"P r ovider" mea n s prov i der as defined at 10 NCAC 

14K.0103(c)(61). 



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tffi "Sub-contractor" means a provider with a w r itten 
contract w i th the Ar e a Autiiority. 

Histoiy Note: Authority G.S. 108A-25(b): W8A-54; 108A- 

55: S.L. 1993, c. 321. s. 222(g); 

EJf. June 1. 1995: 

Temporan.- Repeal Eff. August 20. 1999: 

.0302 ACCESS TO CARE 

(^ CaroHna Alternatives e nroUees a re ehgible to receive all 
men t al health and substan c e ab u s e services for which all 
Medicaid eligible children un d er age 21 are eligible. 

(tr) S e rvices shall b e p r ovid e d through the Area A ut ho r ity 
which is responsibl e fo r assuring enrollee access to m ental 
health and su b s t a n c e ab u se services. 

td The enroU e e's Medicaid ca r d shall note th at the enr o l l e e 
i s e nrol led in Carolina Alternatives. 



.0304 RELATIONSHIP WITH SUB-CONTRACTORS 

ts) Eac h A r ea Au th o ri ty shall establish a commu n ity based 
provider network th at i ncludes su b -contractors in acco id an ce 
with the S t ate Plan for Medical Assistance as requi r ed and 
approved by the Health Care Financing Ad mi nistration. 

tH The M e dicaid State Plan is hereby i nco r porated by 
refert 



subseq u ent amendments and editions. 



reierenc e mcludmg su n seque n t amendments 
Copies of the State Plan a r e available for public i nspe c tion at 
the Division of Medical Assistance, 1985 Umst e ad Drive. 
Raleigh. North Carolina 27 6 03. Copies may be obtained at the 
same address upon written request at a c h a r ge of twenty cents 
($.20) pe r page. 

Histoiy Note: Authority G.S. W8A-25(b): 108A-54: 108A- 

55: S.L. 1993, c. 321. s. 222lg): 

Eff. June 1, 1995: 

Temporarx Repeal Eff. August 20. 1999. 



History Note: Authority G.S. 108A-25{b): 108A-54: 108A- 

55: S.L. 1993. c. 321. s. 222(g): 

Eff. June 1, 1995: 

Tennwran- Repeal Eff. August 20. 1999. 

.0303 ENROLLEE EDUCATION 

t^ Prior to the date that an Area Authority is scheduled to 
brer 



ing services through the Carolina Alte rn atives 



jin aei i vermg services tnrougn tne Larouna A i te rr 
program. DMA shall send notices to all potential enrollees 
about the Carolina Alternatives program and the enrollment 
process. 

HD BMH/DD/SAS shall ensur e that all enrollees rece i ve 
appropriate education about the Carolina Alternatives Program 
as follows: 

t\) DMH/DD/SAS — sfraH — make — arrangements — with 
county departments of social services withni the 
Area Authority's service area for casewo r ke r s to 
inform enrollees about the Carolina Alternatives 
program and the enrollment process, and to give 
e nrollees a Ca r oli n a Alte r nat i ves ha n dbook and 
brochure that explai n the p r og r am a n d the p r ocedu r e 
for accessing services. T l ie handbook and broch ur e 
will also desc r ib e the res p o n sibilities of e nr ollees 
and — the — A r ea — Autho r ity. — and — p r ovide — clea r 
instructions — for — h a n dli n g — e nr o ll ee — questions — or 
problems, includ i ng the t i tle and telep h one nu m be r 
of the A r ea Autho r ity r ep r esentative respo n s i ble fo r 
handling qu e stions a n d p r ob l e m s. 
The — Area — Autho ri ty — shah — p rov i de — written 
information about the Carolina Alternatives p r og r a m 
to enrollees who r eq ue st info r mation o r who s e ek 
services. 



(^ 



History Note: Authority G.S. 108A-25(b) 

55: S.L 1993, c. 321. s. 222(g): 

Eff. June 1, 1995: 

Teiiiporan- Repeal Eff. August 20, 1999. 



108 A- 54: 108A- 



.0305 ENROLLEE AND SUB-CONTRACTOR 
APPEALS 

tff) E nr olle e ap pe als shall be submitted and processed i n 
acco r dance with 1 NCAC 1 4C . 11 5 1 . 



(tr) S ub -co ntr actors may appeal adv 



decisions to the 



averse 

local a r ea p r og r am, in accordance w i th G.S. 122C-151.4 and 
10 NCAC 14V .0708, .0710. .0711. a n d .0712 to the Area 
A u tho r ity R e view Panel. 

Histoiy Note: Authoim' G.S. 108A-25(b): 108A-54: 108A- 
55: S.L 1993, c. 321. .v. 222(g): 42 C.F.R. 431: 
Eff: June 1, 1995: 
Amended Eff. April 1. 1999: 
Temporal-^- Repeal Eff. August 20. 1999. 

Rule-making Agency: Social Senices Commission 

Rule Citation: 10 NCAC 41 S. 061 3 

Effective Date: Julx 20. 1999 

Findings Reviewed and Approved by: Beecher R. Gnix 

Authority for the rule-making: G.S. 13 lD-10.5: 143B-153 

Reason for Proposed Action: Amendment of the licensure 
rule 10 NCAC 4 IS .0613 is being proposed as a result of a 
child fatality in a residential child care facUit}- on March 11. 
1999. The child's death occurred as a I'esult of improper 
restraint techniques utilized by a child care worker. Licensure 
rules governing proper restr'aint techniques are needed 
immediately to ensure that such an incident never occurs 
again due to the improper usage of restrcnnts. Amendment of 
10 NCAC 41S .0613 will ensure greater protection of foster 
children in residential child care facilities. 10 NCAC 41S 
.0613 set forth the requirements for residential child care 



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321 



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facilities if restraints are utilized. 

Comment Procedures: Anyone wishing to comment on this 
proposed rule should contact Sharnese Ransome, APA 
Coordinator, Social Senices Commission. NC Division of 
Social Services, 325 N. Salisbuiy Street. Raleigh, NC 27603. 
phone (919) 733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41S - MINIMUM LICENSING 
STANDARDS FOR RESIDENTIAL CHILD CARE 



SECTION .0600 - SERVICE DELIVERY 



.06 L^ 



DISCIPLINE AND BEHAVIOR 
MANAGEMENT 

(a) The residential child care facility shall have written 
policies and procedures on discipline and behavior 
management inanaticmcnt. includini; the type and use of 
physical restraint holds, rt utilized, which A copy of the 
written policies and procedures shall be provided to and 
discussed with all ch i ld r en, pa r ents or legal custodians , each 
child and the child's parents or legal custodians prior to or at 
the time of admission. Whic h Policies and procedures shall 
include: 

(1) Proactive means for interacting with and teaching 
children which emphasize praise and encouragement 
for exhibiting self control and desired behavior; and 

(2) Methods for protecting children and others when a 
child is out of control. 

(b) The residential child care facility shall implement 
standards for behavior which are reasonable and 
developmentally appropriate. 

(c) The residential child care facility shall not engage in 
discipline or behavior management which includes: 

( 1 ) Corporal/physical punishment; 

(2) Cruel, severe, or humiliating actions; 

(3) Discipline of one child by another child; 

(4) Denial of food, sleep, clothing or shelter; 

(5) Denial of family contact, including family time, 
telephone or mail contacts with family; 

(6) Assignment of extremely strenuous exercise or 
work; 

(7) Verbal abuse or ridicule; 

(8) Chemical, mechanical, or physical restraints except 
as specified in 10 NCAC 41S .0614(e.); or 

(9) Locked rooms. 

(d) The residential child care facility shall prohibit isolation 
as a behavioral control measure except when the facility 
provides it in an unlocked room within hearing distance of a 
staff member and the length of time alone is appropriate to the 
child's age and stages of development. 

(e) If physical restraints are trsed utilized: the residential 
ch il d care facility shall ha\ ' e w r itte n policies and procedures 
o n t h e types of and use of ph y s ic al r estraints which shall be 



discussed with each ch i ld, parents o r legal custodian prior to o i 
u p o n admission. Tlie facility shall train and supervise staff i n 
the safe use of physical restraint. The facility shall docume n ts 
e ach i n cident of physical restraint o n an i n cident r e port which 
shall be filed in the child's record. — Th e fac il ity shall assign 
supe r visory staff to review and i n it i al each incident r e port 
within 24 hours of the physical r e s tr a in t t o evaluate that the 
correct steps were followed by th e di r ect child care staff who 
applied the physical restraint. 

( 1 ) Physical restraint holds shall be administered by 
qualified, trained staff. No child or group of 
children shall be allowed to participate in the 
physical restraint of another child; 

(2) No child shall be physically restrained utilizing a 
protective or mechanical device. Physical restraint 
holds shall: 

(A) not be used for purposes of discipline or 
convenience; 
only be used as a last resort if less restrictive 



i3j 



IB] 



approaches have failed; 

be administered in the least restrictive manner 



possible to protect the child or others from 
imminent risk of harm; and 

(D) end when the child becomes calm. 

The residential child care facility shall: 

(A) Ensure that any physical restraint hold 
utilized on a child is administered by a trained 
staff member with a second staff member in 
attendance. Concurrent with the 

administration of a physical restraint hold and 
for a minimum ot J_5 minutes subsequent to 
the termination of the hold, a staff member 



shall: 
til 
(ii) 



(in) 



tBj 



monitor the child'sbreathing; 

ascertain that the child js verbally 

respt)nsi\e and motoricallv in control; 

and 

shall ensure that the child reinains 

conscious without any complaints oi 

pain. 
If at any time during the administration of a 
physical restraint hold the child complains of 
being unable to breathe or loses motor 
control, the staff member administering the 
physical restraint hold shall immediateK 
terminate the hold or adjust the position to 
ensure that the child's breathing and in(n(tr 
control arc not restricted. If at anN time the 
child appears to be in distress, a staff member 
shall immediately seek medical attention for 
the child: 

Document each incident of a child being 
subjected to a physical restraint hold on an 
incident report. This report shall include: 
(jj die child's name, age, height and 

weight; 



(ii) the t\pe oi' hold utilized; 



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(iii) the duration of the hold; 

(iv) the staff member administering the 

hold; 
(v) staff member witnessing the hold; 
(vi) supervisory staff who reviewed the 

incident report; 
(vii) less restrictive alternatives that were 

attempted prior to utilizing physical 

restramt; 
(viii) the child's behavior which necessitated 

the use of physical restraint; and 
(ix) whether the child's condition 

necessitated medical attention; 
(x) Within 48 hours, supervisory staff 

shall review the incident report to 

ensure that correct steps were followed 

and shall forward the report to the legal 

custodian and the licensing authority; 

(C) Submit a summary report to the Division of 
Social Services by the ]Q^ day of each month 
indicating the number iif physical restraint 
holds used during the previous month on each 
child and any injuries that resulted; 

(D) Ensure that any physical restraint hold 
utilized on a child is administered by a 
competent staff member who has completed 
at least 16 hours of training in behavior 
management, including techniques for de- 
escalating problem behavior and the 
appropriate use of physical restramt holds. 
Thereafter, staff authorized to use physical 
restraint holds shall must also annually 
complete at least eight hours of behavior 
management training, including techniques 
for de-escalating problem behavior; and 

(E) Complete an annual review of the discipline 
and behavior management policies and 
techniques to verify that the physical restraint 
holds being utilized are being applied 
properly and safely. This review shall be 
documented and submitted to the licensing 
authority as part oi the annual licensing 
renewal application. 

Histoiy Note: Authority G.S. 131D-1U.5; 143B-J53: S.L. 

1999-237: 

Eff.Jiilyl. 1999: 

Tempo ran- Amendment Eff. July 20. 1999. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: AT Marine Fisherie.s Comn]is.sion 

Rule Citation: ISA NCAC 31 .0101: 30 .0108. .0302 



Effective Date: August 1. 1999 

Findings Reviewed and Approved by: Beecher R. Gra\ 

Authority for the rule-making: G.S. 113-134: 113-173: 
N3B-289.52 

Reason for Proposed Action: 

ISA NCAC 31 .0101: 30 .0302 - Session Law 1999-209 
amended G.S. 1 13-173(j) to provide that individuals may take 
fish with a gig without holding a Recreational Commercial 
Gear License. Rule changes by the Marine Fisheries 
Commission effective July 1 required individuals to have this 
license. These amendments are necessary in view of recent 
legislative action. The Marine Fisheries Commission does not 
want to require this license for the use of spears if the license 
is not required for gigs. 

ISA NCAC 30 .0108 - The Fisheries Reform Act of 1997 and 
its amendments (House Bill 1448) requires a complete review 
and rewrite of the licensing procedures and requirements for 
Marine Fisheries. The Marine Fisheries Commission were 
considering two options for transfer of landings data when 
transferring licenses. In filing this rule, the incorrect option 
was filed. 

Comment Procedures: Written comments are encouraged 
and max he submitted to Marine Fisheries Commission, 
Juanita Gaskill. PO Bo.x 769. Morehead Cit}\ NC 28557. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

SECTION .0100 - GENERAL RULES 

.0101 DEFINITIONS 

(a) All definitions set out in G.S. 1 13. Subchapter W apply 
to this Chapter. 

(b) TTne following additional terms are hereby defined: 

(1) Commercial Fishing Equipment or Gear. All 
fishing equipment used in coastal fishing waters 
except: 

(A) Seines less than 30 feet in length; 

(B) Collapsible crab traps, a trap used for taking 
crabs with the largest open dimension no 
larger than 18 inches and that by design is 
collapsed at all times when in the water, 
except when it is being retrieved from or 
lowered to the bottom; 

(C) Spears. Hawaiian slings or similar devices 
which propel pointed implements by 
mechanical means, including elastic tubing or 
bands, pressurized gas or similar means; 
m e ans, when used in the Atlantic Ocean 
b e y ond th r ee statute miles; 

(D) A dip nel having a handle not more than eight 



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(E) 



(F 



(G) 



feet in length and a hoop or frame to which (14) 

the net is attached not exceeding 60 inches 

along the perimeter; 

Hook-and-line and bait-and-line equipment 

other than multiple-hook or multiple-bait 

trotline; (15) 

A landing net used to assist in taking fish 

when the initial and primary method of taking 

is by the use of hook and line; and (16) 

Cast Nets; and Nets. 

Gigs or other pointed implements which are 

propelled by hand, whether or not the 

implement retnams in the hand. (17) 

(2) Fixed or stationary net. A net anchored or staked to 
the bottom, or some structure attached to the bottom, 
at both ends of the net. 

(3) Mesh Length. The diagonal distance from the inside 
of one knot to the outside of the other knot, when 
the net is stretched hand-tight. 

(4) Possess. Any actual or constructive holding 
whether under claim of ownership or not. 

(5) Transport. Ship, carry, or cause to be carried or 
moved by public or private carrier by land. sea. or 
air. 

(6) Use. Employ, set. operate, or permit to be operated (18) 
or employed. 

(7) Purse Gill Nets. Any gill net used to encircle fish 

when the net is closed by the use of a purse Hne (19) 

through rmgs located along the top or bottom line or 
elsewhere on such net. 

(8) Gill Net. .A net set vertically in the water to capture 
fish by entanglement by the gills in its mesh as a 
result of net design, construction, mesh size, 
webbing diameter or method in which it is used. 

(9) Seine. A net set vertically in the water and pulled 
by hand or power to capture fish by encirclement 
and confining fish within itself or against another 

net. the shore or bank as a result of net design. (20) 

construction, mesh size, webbing diameter, or 
method in which it is used. 

(10) Internal Coastal Waters or Internal Waters. All 
coastal fishing waters except the Atlantic Ocean. 

(11) Channel Net. A net used to take shrimp which is 
anchored or attached to the bottom at both ends or 
with one end anchored or attached to the bottom and 
the other end attached to a boat. 

(12) Dredge. A device towed by engine power 
consisting of a frame, tooth bar or smooth bar, and 
catchbag used in the harvest of oysters, clams, crabs, 
scallops, or conchs. 

(13) Mechanical methods for clamming. Includes, but 
not limited to, dredges, hydraulic clam dredges, 
stick rakes and other rakes when towed by engine 
power, patent tongs, kicking with propellers or 
deflector plates with or without trawls, and any 
other method that utilizes mechanical means to 
harvest clams. 



Mechanical methods for oystering. Includes, but not 
limited to. dredges, patent tongs, stick rakes and 
other rakes when towed by engine power and any 
other method that utilizes mechanical means to 
harvest oysters. 

Depuration. Purification or the removal of 
adulteration from live oysters, clams, and mussels 
by any natural or artificially controlled means. 
Peeler Crab. A blue crab that has a soft shell 
developing under a hard shell and having a definite 
pink, white, or red line or rim on the outer edge of 
the back fin or flipper. 
Length of finfish. 

(A) Total length is determined by measuring 
along a straight line the distance from the tip 
of the snout w ith the mouth closed to the tip 
of the compressed caudal (tail) fin. 

(B) Fork length is determined by measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the middle of 
the fork in the caudal (tail) fin. 

(C) Fork length for billfish is measured from the 
tip of the lower jaw to the middle of the fork 
of the caudal (tail) fin. 

Licensee. Any person holding a valid license from 
the Department to take or deal in marine fisheries 
resources. 

Aquaculture operation. An operation that produces 
artificially propagated stocks of marine or estuarine 
resources or obtains such stocks from authorized 
sources for the purpose of rearing in a controlled 
environment. A controlled en\ironment provides 
and maintains throughout the rearing process one or 
more of the following: predator protection, food, 
water circulation, salinity, or temperature controls 
utilizing proven technology not found in the natural 
environment. 

Critical habitat areas. The fragile estuarine and 
marine areas that support juvenile and adult 
populations of economically important seafood 
species, as well as forage species important in the 
food chain. Critical habitats include nursery areas, 
beds of submerged aquatic vegetation, shellfish 
producing areas, anadromous fish spawning and 
anadromous fish nursery areas, in all coastal fishing 
waters as determined through marine and estuarine 
survey sampling. Critical habitats are vital for 
portions, or the entire life cycle, including the early 
growth and development of important seafood 
species. 

(A) Beds of submerged aquatic vegetation are 
those habitats in public trust and estuarine 
waters vegetated with one or more species of 
submerged vegetation such as eelgrass 
(Zostera marina), shoalgrass (Halodulc 
wrightii) and widgeongrass (Ruppia 
maritima). These \e2elati0n beds occur in 



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both subtidal and intertidal zones and may 
occur in isolated patciies or cover extensive 
areas. In either case, the bed is defined by the 
presence of above-ground leaves or the 
below-ground rhizomes and propagules 
together with the sediment on which the 
plants grow. In defining beds of submerged 
aquatic vegetation, the Marine Fisheries 
Commission recognizes the Aquatic Weed 
Control Act of 1991 (G.S. 1 13A-220 et. seq.) 
and does not intend the submerged aquatic 
vegetation definition and its implementing 
rules to apply to or conflict with the 
non-development control activities authorized 
by that Act. 

(B ) Shellfish producing habitats are those areas in 
which economically important shellfish, such 
as, but not limited to clams, oysters, scallops, 
mussels, and whelks, whether historically or 
currently, reproduce and survive because of 
such favorable conditions as bottom type, 
salinity, currents, cover, and cullch. Included 
are those shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are defined 
as those areas where evidence of spawning of 
anadromous fish has been documented by 
direct observation of spawning, capture of 
running ripe females, or capture of eggs or 
early larvae. 

(D) Anadromous fish nursery areas are defined as 
those areas in the riverine and estuarine 
systems utilized by post-larval and later 
juvenile anadromous fish. 

(21) Intertidal Oyster Bed. A formation, regardless of 
size or shape, formed of shell and live oysters of 
varying density. 

(22) North Carolina Trip Ticket. Multiple-part form 
provided by the Department to fish dealers who are 
required to record and report transactions on such 
forms. 

(23) Transaction. Act of doing business such that fish 
are sold, offered for sale, exchanged, bartered, 
distributed or landed. The point of landing shall be 
considered a transaction when the fisherman is the 
fish dealer. 

(24) Live rock. Living marine organisms or an 
assemblage thereof attached to a hard substrate 
including dead coral or rock (excluding moUusk 
shells). For example, such living marine organisms 
associated with hard bottoms, banks, reefs, and live 
rock may include, but are not limited to: 

(A) Animals: 

(i) Sponges (Phylum Porifera); 
(ii) Hard and Soft Corals, Sea Anemones 
(Phvlum Cnidaria): 



(I) Fire corals (Class Hydrozoa): 
(II) Gorgonians, whip corals, sea 
pansies, anemones, Solenastrea 
(Class Anthozoa); 
(iii) Bryozoans (Phylum Bryozoa); 
(iv) Tube Worms (Phylum Annelida): 
(I) Fan worms (Sabellidae); 
(II) Feather duster and Christmas 

tree worms (Serpulidae); 
(III) Sand castle worms 
(Sabellaridae). 
(V) Mussel banks (Phylum 

Mollusca:Gastropoda); 
(vi) Colonial barnacles (Arthropoda: 
Crustacea: Megabalanus sp.). 
(B) Plants: 

(i) Coralline algae (Division 

Rhodophyta); 
(ii) Acetabularia sp., Udotea sp., Halimeda 
sp., Caulerpa sp. (Division 
Chlorophyta); 
(iii) Sargassum sp., Dictyopteris sp., 
Zonaria sp. (Division Phaeophyta). 

(25) Coral: 

(A) Fire corals and hydrocorals (Class 
Hydrozoa); 

(B) Stony corals and black corals (Class 
Anthozoa, Subclass Scleractinia); 

(C) Octocorals: Gorgonian corals (Class 
Anthozoa, Subclass Octocorallia): 

(i) Sea fans (Gorgonia sp.); 
(ii) Sea whips (Leptogorgia sp. and 

Lophogorgia sp.); 
(iii) Sea pansies (Renilla sp.). 

(26) Shellfish production on leases and franchises: 

(A) The culture of oysters, clams, scallops, and 
mussels, on shellfish leases and franchises 
from a sublegal harvest size to a marketable 
size. 

(B) The transplanting (relay) of oysters, clams, 
scallops and mussels from designated areas 
closed due to pollution to shellfish leases and 
franchises in open waters and the natural 
cleansing of those shellfish. 

(27) Shellfish marketing from leases and franchises. The 
harvest of oysters, clams, scallops, mussels, from 
privately held shellfish bottoms and lawful sale of 
those shellfish to the public at large or to a licensed 
shellfish dealer. 

(28) Shellfish planting effort on leases and franchises. 
The process of obtaining authorized cultch 
materials, seed shellfish, and polluted shellfish 
stocks and the placement of those materials on 
privately held shellfish bottoms for increased 
shellfish production. 

(29) Pound Net. A fish trap consisting of a holding pen. 



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325 



TEMPORARY RULES 



(30) 



(31) 

(32) 
(33) 



(34) 



(35) 



(36) 



(37) 



(38) 



(39) 



(40) 



(41) 
(42) 
(43) 



one or more enclosures, and a lead or leaders. The 
lead(s), enclosures, and holding pen are not conical, 
nor are they supported by hoops or frames. 
Educational Institution. A college, university or 
community college accredited by a regional 
accrediting institution. 

Long Haul Operations. A seine towed between two 
boats. 

Swipe Net Operations. A seine towed by one boat. 
Bunt Net. The last encircling net of a long haul or 
swipe net operation constructed of small mesh 
webbing. The bunt net is used to form a pen or 
pound from which the catch is dipped or bailed. 
Responsible party. Person who coordinates, 
supervises or otherwise directs operations of a 
business entity, such as a corporate officer or 
executive level supervisor of business operations 
and the person responsible for use of the issued 
license in compliance with applicable laws and 
regulations. 

New fish dealer. Any fish dealer making 
application for a fish dealer license who did not 
possess a valid dealer license for the previous 
license year in that name or ocean pier license in 
that name on June 30. 1 999. For puiposes of license 
issuance, adding new categories to an existing fish 
dealers license does not constitute a new dealer. 
Tournament Organizer. The person who 

coordinates, supervises or otherwise directs a 
recreational fishing tournament and is the holder of 
the Recreational Fishing Tournament License. 
Holder. A person who has been lawfully issued in 
their name a license, permit, franchise, lease, or 
assignment. 

Recreational Purpose. A fishing activity has a 
recreational purpose if it is not a commercial fishing 
operation as defined in G.S. 113-1 68. 
Recreational Possession Limit. Includes, but is not 
limited to, restrictions on size, quantity, season, time 
period, area, means, and methods where take or 
possession is for a recreational purpose. 
Attended. Being in a vessel, in the water or on the 
shore immediately adjacent to the gear and 
immediately available to work the gear and within 
100 yards of any gear in use by that person al all 
times. Attended does not include being in a 
building or structure. 

Commercial Quota. Total quantity of fish allocated 
for harvest taken by commercial fishing operations. 
Recreational Quota. Total quantity of fish allocated 
for harvest taken for a recreational purpose. 
Office of the Division. Physical locations of the 
Division conducting license transactions in the cities 
of Wilmington, Washington, Morehead City, 
Columbia, Wanchese and Elizabeth City, North 
Carolina. Other businesses or entities designated 
by the Secretary to issue Recreational Commercial 



Gear Licenses are not considered Offices of the 
Division. 

(44) Land; 

(A) For purposes of trip tickets, when fish reach a 
licensed seafood dealer, or where the 
fisherman is the dealer, when the fish reaches 
the shore or a structure connected to the 
shore. 

(B) For commercial fishing operations, when fish 
reach the shore or a structure connected to the 
shore. 

(C) For recreational fishing operations, when fish 
are retained in possession by the fisherman. 

(45) Master. Captain of a vessel or one who commands 
and has control, authority, or power over a vessel. 

(46) Regular Closed Oyster Season. The regular closed 
oyster season occurs from May 1 5 through October 
15, unless amended by the Fisheries Director 
through proclamation authority. 

(47) .Assignment. Temporary transferral to another 
person of privileges under a license for which 
assignment is permitted. The person assigning the 
license delegates the privileges permitted under the 
license to be exercised by the assignee, but retains 
the power to revoke the assignment at any time, is 
still the responsible party for the license. 

(48) Transfer. Permanent transfen"al to another person of 
privileges under a license for which transfer is 
permitted. The person transferring the license 
retains no rights or interest under the license 
transferred. 

Hisrorx Note: Aiitlumiy G.S. J 13-134: 143B-289.52; 

Eft: January I. 1991: 

Amended Ejf. March 1. 1995: March 1. 1994: October 1. 

1993: July 1. 1993: 

Recodified from 15A NCAC 31 .0001 Eff. December 17. 1996: 

Amended Eff. April 1. 1999: August 1. 1998: April 1. 1997: 

Temporal-) Amendment Eff. August [^ 1999: July 1. 1999. 

SUBCHAPTER 30 - LICENSES, LEASES, AND 
FRANCHISES 

SECTION .0100 - LICENSES 

.0108 LICENSE TRANSFERS 

(a) Licenses to Land Flounder from the Atlantic Ocean may 
only be transferred: 

( 1 ) with the transfer of the ownership of a vessel that 
the licensee owns that individually met the 
eligibility requirements of 15A NCAC 30 .0101 
(b)(1)(A) and (b)(1)(B) lo the new owner of that 
vessel. Transfer of the License to Land Flounder 
from the Atlantic Ocean transfers all flounder 
landings from the Atlantic Ocean associated with 
that vessel: or 



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TEMPORARY RULES 



(2) by the owner of a vessel to another vessel under the 
same ownership. 
Any transfer of license under this Paragraph may only be 
processed through the Division of Marine Fisheries 
Morehead City Office and no transfer is effective until 
approved and processed by the Division. 

(b) Commercial Fishing Vessel Registration Transfer. 
When transferring ownership of a vessel bearing a current 
commercial fishing vessel registration, the new owner will 
follow the requirements in 15A NCAC 30 .0101 and pay a 
replacement fee of ten dollars ($10.00) for a replacement 
commercial fishing vessel registration. The new owner must 
submit a form provided by the Division with the signatures of 
the former licensee and the signature of the new licensee 
notarized. 

(c) Standard or Retired Standard Commercial Fishing 
License transfers: 

(!) A Standard or Retired Standard Commercial Fishing 
License may only be transferred if both the 
transferor and the transferee ha\e no current 
suspensions or revocations of any Marine Fisheries 
license privileges. 

(2) Licens e — eligibility — privileges — accruing — to — any 
i n div i dual, suc h as historic landings or participation 
i n a f i shery, shall be ass i gned by the Division to a 
specific S t andard or Retired Standard Commerc i al 
F is h ing License held by that individual. At the time 
of the transfer of a Standard or Retired Standard 
Commercial Fishing License, the transferor must 
indicate the e.xte n t of the retainment or transfer of 
the landings history associated with that Standard or 
Retired Standard Commercial Fishinii License. 
tr a n sfe r o r 's — license — e l igib i l i ty — pr ivil e g e s — m — a 
p a rtic ula r fishe r y, if any. The transferor may retain 
a landings history r es i dua l — li cense — el i g ibili ty 
privileg e s only if the transferor holds an additional 
Standard or Retired Standard Commercial Fishing 
License. Transfer of a landings history is aM or 
none. 

(3) To transfer a Standard or Retired Standard 
Commercial Fishing License, the following 
information is required: 

(A) information on the transferee as set out in 
15A NCAC 30 .0101; 

(B) notarization of the current license holder's 
and the transferee's signatures on a transfer 
form provided by the Division; and 

(C) when the transferee is a non-resident, a 
written certified statement from the applicant 
listing any violations insohing marine and 
estuarine resources during the previous three 
years. 

(D) when the transferor is retiring from 
commercial fishing, the transferor must 
submit evidence showing that such retirement 
has in fact occurred, for example. e\'idence of 



the transfer of all licensee's Standard 
Commercial Fishing Licenses, sale of all the 
licensee's registered vessels, or 
discontinuation of any active involvement in 
commercial fishing. 
Properly completed transfer forms must be returned 
to Division Offices by mail or in person; and 

(4) The Standard or Retired Standard Commercial 
Fishing License which is being transferred must be 
surrendered to the Division at the time of the 
transfer application. 

(5) Fees: 

(A) Transferee must pay a replacement fee of ten 
dollars ($10.00). 

(B) Transferee must pay the differences in fees as 
specified in G.S. 113-168.2(e) or G.S. 113- 
168.3(b) when the transferee who is a non- 
resident is being transferred a resident 
Standard or Retired Standard Commercial 
Fishing License. 

(C) Transferee must pay the differences in fees as 
specified in G.S. 113-168. 2(e) when the 
license to be transferred is a Retired Standard 
Commercial Fishing License and the 
transferee is less than 65 years old. 

(6) Transfer of Standard or Retired Standard 
Commercial Fishing License for Deceased 
Licensees: 

(A) Only when the deceased licensee's immediate 
surviving family member(s) is eligible to hold 
the deceased's Standard Commercial Fishing 
Licenses or Retired Standard Commercial 
Fishing License, the Administrator/E.xcculor 
must give written notification within six 
months after the Administrator/Executor 
qualifies under G. S. 28A to the Morehead 
City Office of the Di\ision of Marine 
Fisheries of the request to transfer the 
deceased's license to the estate 
Administrator/Executor. 

(B) A transfer to the Administrator/Executor will 
be made according to the pnnisions of 
Subparagraphs (c)(2) - (c)(4) of this Rule. 
The Administrator/Executor must provide a 
copy of the deceased licensee's death 
certificate, a copy of the certificate of 
administration and a list of eligible immediate 
family members to the Morehead City Office 
of the Di\ision of Marine Fisheries. 

(C) The Administrator/Executor may only 
transfer a license in the 
Administrator/Executor name on behalf of the 
estate to a eligible sursiving family member. 
The survi\'ing family member transferee may 
only transfer the license to a third party 
purchaser of the deceased licensee's fishing 



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327 



TEMPORARY RULES 



vessel. Transfers will be made according to 
the provisions of Subparagraphs (c)2 - (c)(4) 
of this Rule. 

(d) Transfer forms submitted without complete and required 
information will be deemed incomplete and will not be 
considered further until resubmitted with all required 
information. 

(e) It is unlawful for a person to accept transfer of a 
Standard or Retired Standard Commercial Fishing License for 
which they are ineligible. 

History Note: Authority G.S. 113-134: 113-168.1:113- 

168.2: 113-168.3: 113-168.6: I43B-289.52: 

Eff. Janiian' 1. 1991: 

Amended Eft: March 1. 1994: 

Temporary Amendment Eff. Ausust /^ 1999: July 1. 1999. 

SECTION .0300 - LICENSE APPEAL PROCEDURES 

.0302 AUTHORIZED GEAR 

(a) The following are the only commercial fishing gear 
authorized (including restrictions) for use under a valid 
Recreational Commercial Gear License; 

til When used in state wat er s, w it h o r with out a v e ssel. 

sp e ars. Hawai i an slings or simila r devices which 

propel pointed imp l ements by mechan i cal means. 

i nclud i ng elas t ic tubmg o r bands, p r essuriz e d gas o r 

similar means: 
f^ With or w i thout a \Tssel. gigs or other pomted 

imple m ents which are piopelled by ha n d, whether o r 

not the implement remains in the hand : 
( 1 )<-f^ One seine 30 feet or over in length with a mesh 

length less than IVi inches, pulled by hand. 

Mechanical methods for using the seine are not 

authorized for recreational purposes: 
(2)t4-) One shrimp trawl with a headrope not exceeding 26 

feet in length per vessel. Mechanical methods for 

retrieving the trawl are not authorized for 

recreational purposes; 
(3)t5l With or without a vessel, five eel, fish, shrimp, or 

crab pots in any combination, except only two pots 

of the five may be eel pots. Peeler pots are not 

authorized for recreational purposes: 
(4)(fr) One multiple hook or multiple bait trotline up to 100 

feet in length; and 
i5jm Gill Nets; 

(A) Not more than 100 yards of gill nets with a 
mesh length equal to or greater than 2 V2 
inches. Attendance is required at all times: 

(B) Not more than 100 yards of gill nets with a 
mesh length equal to or greater than 5 V2 
inches. Attendance is required when used 
from one hour after sunrise through one hour 
before sunset: and 

(C) Not more than 100 yards of gill net may be 
used at any one time. 

(b) It is unlawful to use more than the quantity of 



authorized gear specified in Subparagraphs (a)(3) - (a)(7) of 
this Rule, regardless of the number of individuals aboard a 
vessel possessing a valid Recreational Commercial Gear 
License. 

(c) It is unlawful for a person to violate the restrictions of or 
use gear other than that authorized by Paragraph (a) of this 
Rule. 

(d) Unless otherwise provided, this Rule does not exempt 
Recreational Commercial Gear License holders from the 
provisions of other applicable rules of the Marine Fisheries 
Commission or provisions of proclamations issued by the 
Fisheries Director as authorized by the Marine Fisheries 
Commission. 

Histoiy Note: Filed as a Temporary .Adoption Eff. August 9. 

1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 113-134: 113-173: 

Eff. Fehruur\ 1. 1995: 

Temporary Amendment Eff. August l^l999j_ July I. 1999. 



Rule-making Agency: 

Commission 



North Carolina Marine Fisheries 



Rule Citation: 15A NCAC 3M .0513 

Effective Date: Aut^u.st 1. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 113-134: 113-182: 
113-221: I43B-289.52 

Reason for Proposed .Action: A recent stock assessment of 
river herring indicates that the population is at a historic low. 
spawning stock hiomass is decreasing and fishing mortality 
has exceeded sustainable levels. Temporary measures were 
adopted effective March /, 1999. for management of the 
fishery while the Fishery Management Plan is being 
developed. In fding amendments to other rules effective July 
1. 1999, this Rule was fded by mistake. This temporaiy 
amendment reverts hack to those temporary measures which 
were effective March 1. 1999. 

Comment Procedures: Written comments are encouraged 
and may be submitted to the MFC. Juimita Gaskill. PO Box 
769. Morehead City. NC 28557. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3M - FINFISH 

SECTION .0500 - OTHER FINFISH 



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14:4 



TEMPORARY RULES 



.0513 RIVER HERRING AND SHAD 

(a) Until th e adoption of a fishery manag e ment plan for 
liver herring (Dlue b ack Her rin g. Alcwiic) o r shad (Ame r ica n 
Shad. Hickoiy Shad) b y the North Carolina Marine Fisheries 



e 



i lawful t o t ake biuehack h e rring, al e wife. 



oiiunission. it is unl 
A meri ca n shad and hickory shad by any 
through January I . 

ttr) Upon adopt i on of a n d i n orde r to comply with t he 
management — requireme n ts — incorporated — m — the — Fishery 
Management Plan(s) for River Herring — (Dlueback Herring. 
Al e w i fe) or Shad (American Shad. Hickory ShadI developed 
by t h e North Carolina Marine Fisheries Commission, the The 
Fisheries Director may. by proclamation, based on variability 
in environmental and local stock conditions, take any or all of 
the following actions in the blueback herring, alewife. 
American shad and hickory shad fisheries: 

( 1 ) Specify size; 

(2) Specify season; 

( 3 ) Specify area; 

(4) Specify quantity; 

(3) Specify means/methods; and 

(6) Require submission of statistical and biological data. 
(b) The annual commercial quota (calendar year) for ri\er 
herring m the Albemarle Sound Herring Management Area 
shall be 450.000 pounds to be allocated as follows: 

( 1 ) 300.000 pounds to the pound net fisher^' for the 
Chowan River Herring Management Area; 

(2) 1 00.000 pounds to the Albemarle Sound Herring 
Management Area gill net fishei\; and 



(3) 50.000 pounds to be allocated at the discretion of 
the Fisheries Director. 

(c) For the purpose oi this Rule, the Albemarle Sound 
Herring Management Area is defined as Albemarle Sound and 
aj] its joint water tributaries; Currituck Sound; Roanoke and 
Croatan sounds and all their joini water tributaries, including 
Oregon Inlet, north cif a line from Roanoke Marshes Point 35° 
48: ir N ; Z?: 43: OfL W, running 122" (M) across to the 
north point of Eagles Nest Bav 35^ 44' 1 2" N - 75" 3 1 ' 09" W. 

(d) For the purpose ot this Rule, the Chowan River Herring 
Management Area is defined as that area northwest of a line 
from Black Walnut Point 36 00' 00" N - 76" 41" 00" W; 
running 040" (M) to Rcedv Point 36" 02' 12" N - 76° 39' 20" 
W^ to the North CarolinaA^irginia state line; including the 
Meherrin River. 

(ej It is unlawful to take American shad and hickory shad 
by any method except hook-and-line from April 15 through 
December 3 1 . 

(f) tcl It is unlawful to possess more than 10 American 
shad or hickory shad, in the aggregate, per person per day 
taken by hook-and-line. hook-and-line or for recreational 
purposes. 

Histoiy Note: Authority G.S. 113-J34: 1 1 3-182: 11 3-221: 

143B-289.52: 

Eff. March I. 1995: 

Amended Eff. August I. 1998: 

Temporary Amendment Eff. Auvust [^ 1999: July I. 1999: 

March I. 1999. 



14:4 



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329 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting 
of Max 20j_ 1999 pursuant to G.S. 150B-2l.l7(a)( 1 ) and reported to the Joint Legislative Administrative Procedure 
Oversight Committee pursuant to G.S. 150B-21. 16. The full text of rules are published below when the rules have been 
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be 
published in the Register. The rules published in full te.xt are identified by an * in the listing of approved rules. Statutory 
Reference: G.S. 1 50B-2 1. 1 7. 

These rules unless otherwise noted, will become effective on the 31st legislative day of the 2000 Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 3 1st legislative day that specifically 
disapproves the rule. If a hill to disapprove a rule is not ratified, the rule will become effective either on the day the bill 
receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B-2I .3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



15A 


NCAC 


03Q 


.0107 


15A 


NCAC 


07H 


.2401 - 


15A 


NCAC 


()7H 


.2403 


I5A 


NCAC 


07 H 


.2405* 


15A 


NCAC 


lOB 


.0105* 


13A 


NCAC 


lOB 


.0212* 


21 


NCAC 


04B 


.0102* 


21 


NCAC 


12 


.0204 


21 


NCAC 


46 


.1804* 



.2402* 



13:13 NCR 1043 
13: 13 NCR 1046 
13:13 NCR 1047 
13:13 NCR 1047 
13:12 NCR 948 
13:12 NCR 939 
not required. G.S. 
13:13 NCR 1049 
13:02 NCR 247 



508-21. 4; 150B-2 1.5(a) 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



History Note: Authority G.S. 113A-107: ILU-IIS.l: 
Eff. Aiisust 1. 2000. 



CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .2400 - GENERAL PERMIT FOR 

PLACEMENT OF RIPRAP FOR WETLAND 

PROTECTION IN ESTUARINE AND PUBLIC TRUST 

WATERS 

.2401 PURPOSE 

The general permit for placement riprap for wetland 
protection in estuarine and public trust waters shall allow the 
placement of riprap immediately adjacent to and waterward of 
wetlands. This permit shall only be applicable where a 
shoreline is experiencing erosion in public trust areas and 
estuarine waters according to authority provided in 15A 
NCAC 7J .1100 and according to the rules in this Section. 
This permit shall not apply within the Ocean Hazard System 
of Areas of Environmental Concern ( AEC) or waters adjacent 
to these AEC"s with the exception of those portions of 
shoreline within the Inlet Hazard Area AEC that feature 
characteristics of Estuarine Shorelines. Such features include 
the presence of wetland vegetation, lower wave energy, and 
lower erosion rates than in the adjoining Ocean Erodible Area. 



.2402 APPROVAL PROCEDURES 

(a) The applicant must contact the Division of Coastal 
Management and request approval for development. The 
applicant shall provide information on site location, 
dimensions of the project area, and his name and address. 

(b) The applicant must provide: 

( 1 ) confirmation that a written statement has been 
obtained signed by the adjacent riparian property 
owners indicating that they have no objections to the 
proposed work; or 

(2) confirmation that the adjacent riparian property 
owners have been notified by certified mail of the 
proposed work. Such notice shall instruct adjacent 
property owners to provide any comments on the 
proposed development in writing for consideration 
by permitting officials to the Division of Coastal 
Management within 10 days of receipt of the notice, 
and. indicate that no response will be interpreted as 
no objection. DCM staff will review all comments 
and determine, based on their relevance to the 
potential impacts of the proposed project, if the 
proposed project can be approved by a General 
Permit. If DCM staff finds that the comments are 
worthy of more in-depth review, the applicant will 
be notified that he must submit an application for a 
major development permit. 



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APPROVED RULES 



(c) DCM staff shall review all comments and determine, 
based on their relevance to the potential impacts of the 
proposed project, if the proposed project meets the 
requirements of the rules in this Section. If DCM staff finds 
that the comments are worthy of more in-depth review, the 
applicant shall be notified that he must submit an application 
for a major development permit. 

(d) No work shall begin until an on-site meeting is held 
with the applicant and appropriate Division of Coastal 
Management representative so that the wetland protection 
structure can be appropriately marked. Written authorization 
to proceed with the proposed development may be issued 
during this visit. Construction of the wetland protection 
structure must be completed within 90 days of this visit or the 
general authorization expires and it shall be necessary to 
re-examine the alignment to determine if the general 
authorization can be reissued. 

History Note: Authorities. IIM-IO?: II3A-II8.1: 
Eft: Ansiist I, 2000. 

.2405 SPECIFIC CONDITIONS 

(a) This general permit shall only be applicable along 
shorelines possessing wetlands, and which exhibit an 
identifiable erosion escarpment. 

(b) The height of the erosion escarpment shall not exceed 
three feet. 

(c) The riprap shall be placed immediately watcrward of the 
erosion escarpment. 

(d) The riprap must be positioned so as not to exceed a 
maximum of five feet waterward of the erosion escarpment at 
any point along its alignment. 

(e) The riprap must be positioned so as not to exceed a 
maximum of six inches above the elevation of the adjacent 
wetland substrate. 

(f) Where Department staff determine that insufficient 
wetlands or coastal marsh exists along the permittees 
shoreline to provide adequate shoreline stabilization, the 
permittee shall be required to plant appropriate coastal marsh 
or wetland species landward of the riprap structure as directed 
by Department staff. 

(g) Construction authorized by this general permit will be 
limited to a maximum length of 500 feet. 

(h) No backfill or any other fill of wetlands, submerged 
aquatic vegetation, estuarine waters, public trust areas, or 
highground areas is authorized by this general permit. 

(i) No excavation of the shallow water bottom, any 
wetlands, or high ground is authorized by this general permit. 

(j) The riprap must not be placed in such a manner as to 
impede water fiow into or out of any natural channel or 
stream. 

( k ) The riprap material must be free from loose dirt or any 
pollutant. It must be of a size sufficient to prevent its 
movement from the site by wave or current action. 

(1) Riprap material must consist of clean rock or masonry 
materials such as marl, granite or broken concrete. Materials 



such as tires, car bodies, scrap metal, paper products, tree 
limbs, wood debris, organic material or similar materials are 
not appropriate riprap tor the purposes of this General Permit. 

(m) If the crossing of wetlands with mechanized or non- 
mechanized construction equipment is necessary, temporary 
construction mats shall be utilized for the area(s) to be crossed. 
The temporary mats shall be removed immediately upon 
completion of construction of the riprap structure. 

(n) The permittee shall maintani the structure in good 
condition and in conformance with the terms and conditions of 
this permit or the remaining riprap structure shall be removed 
within 90 days of notification from the Division of Coastal 
Management. 

Histoiy Note: Authority G.S. USA- 107; IJSA-llS.l: 
Eff. Aui^ust I, 2000. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0105 MIGRATORY GAME BIRDS 

(a) Cooperative State Rules: 

(1) The taking of sea ducks (scoter, eider and old 
squaw) during any special federally-announced 
season for these species shall be limited to the 
waters of the Atlantic Ocean, and to those coastal 
waters south of US 64 which are separated by a 
distance of at least SOO yards of open water from 
any shore, island or marsh. 

(2) The extra daily bag and possession limits allowed 
by the federal regulations on scaup apply in all 
coastal waters east of US. Highway 17, except 
Currituck Sound north of US 15X. 

(3) Tundra swans may be taken during the open season 
by permit only subject to annual limitations imposed 
by the U. S. Fish and Wildlife Service. Based upon 
the annual limitations imposed by the U.S. Fish and 
Wildlife Service, nontransferable swan permits will 
be issued by the Wildlife Resources Commission to 
applicants who will be selected at random by 
computer, and only one swan may be taken under 
each permit which must be cancelled at the time of 
the kill by cutting out the month and day of the kill. 
Acct)mpanying the permit is a tag which must be 
affixed to the swan at the time and place of the kill. 
The tag must be affixed in accordance with 
instructions provided with the permit. In addition, a 
preaddressed post-paid card is supplied to each 
pemiittee on which to report the number of days 
hunted and the details ol the kill if made. It is 
unlawful to hunt swans without having the permit 
and the tag in possession or to possess a swan 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



331 



APPROVED RULES 



without the cancelled permit in possession and the 
tag properly affixed to the swan. It is unlawful to 
possess a swan permit or tag while hunting that was 
assigned to another person or to alter the permit or 
tag in any way other than cutting out the proper 
month and day of kill. 
(4) Canada geese may be taken during the open season 
by permit holders only subject to limitations 
imposed by the U.S. Fish and Wildlife Service. 
Permits will be issued by the North Carolina 
Wildlife Resources Commission. It is unlawful to 
hunt or possess Canada geese without having the 
permit in possession. It is unlawful to possess a 
Canada goose permit while hunting that was 
assigned to another person or to alter the permit in 
any way. 
(b) Notwithstanding the provisions of G.S. 11 3-29 1.1 (a) 

and (b), the following restrictions apply to the taking of 

migratory game birds: 

( 1 ) No migratory game bird may be taken: 

(A) With a rifle; 

(B) With a shotgun of any description capable of 
holding more than three shells, unless it is 
plugged with a one-piece filler, incapable of 
removal without disassembling the gun, so as 
to limit its total capacity to not more than 
three shells. 

(2) No migratory game bird may be taken: 

(A) From or by the use of a sinkbox or any other 
type of low floating device affording the 
hunter a means of concealment beneath the 
surface of the water; 

(B) With the aid of bait, or on, over or within 300 
yards of any place where any grain, salt or 
other feed is exposed so as to constitute an 
attraction to migratory game birds or has been 
so exposed during any of the 10 consecutive 
days preceding the taking, except that this 
Part shall not apply to standing crops, flooded 
croplands, grain crops properly shocked on 
the field where grown, or grains found 
scattered solely as the result of normal 
agricultural planting or harvesting; 

(C) With the aid of live decoys, or on. over or 
within 300 yards of any place where tame or 
captive migratory game birds are present, 
unless such birds are and have been for a 
period of 10 consecutive days prior to such 
taking confined within an enclosure which 
substantially reduces the audibility of their 
calls and totally conceals them from the sight 
of wild migratory game birds. 

(3) Waterfowl hunting and harassment and other 
unauthorized activities shall be prohibited on posted 
waterfowl management areas established by the 
Wildlife Resources Commission for Canada Geese 
and ducks restoration. 



(4) In that area of Roanoke Sound adjacent to and 
immediately Northeast of Roanoke Island as marked 
by buoys designating the waterfowl rest area, it shall 
be unlawful to harass or take any waterfowl. 

(5) The area east of US 17 shall be designated as an 
experimental September teal season zone as 
referenced by the Federal frameworks calling for 
state rules designating experimental areas. 

Histon- Note: Authority G.S. 113-134; 113-274; 113-291.1; 

113-291.2; 50 C.F.R. 20.21; 50 C.F.R. 20.105; 

Eff. Februai-y 1, 1976; 

Amended Eff. July 1, 1995; April 1. 1992; February 1, 1990; 

September 1. 1989; 

Temporaiy Amendment Ejf. September 10. 1998; 

AmendedEff.Juh I. 2000. 

SECTION .0200 - HUNTING 

.0212 FOXES (GRAY AND RED) 

(a) Seasons. 

( 1 ) There shall be no closed season on taking foxes with 
dogs; 

(2) Foxes may be taken with weapons or traps the first 
to fourth Saturday in January in the following 
counties: 



Caswell 
Clay 
Graham 
Henderson 



Macon 

Stokes 
Tyrrell 



(3) Foxes may be taken the Saturday next preceding 
Thanksgiving through January 1 by bow and arrow 
in all areas of the State east of Interstate Highway 77 
and in Mitchell County, 
(b) Bag Limit. 

( 1 ) Except in areas of open season for taking foxes with 
weapons or traps, foxes may not be intentionally 
killed by any method; 

(2) In areas of open season in all areas east of Interstate 
Highway 77 as set by the Legislature and in 
Subparagraph (a)(2) and (3) of this Rule, the 
following bag limit applies: Daily, two; season, 10. 

Note: Where local laws governing the taking of foxes conflict 
with these Regulations, the local laws shall prevail. 

History Note; Temporary Amendment Ejf. November 1. 

1989; 

Authority- G.S 113-134; 113-291.2; 113-291.4; 

Eff. February- 1. 1976; 

Amended Eff. Jul\ 1. 1994; May 1, 1990; Julx 1. 1987; 

December I. 1985; 

Temporary Amendment Eff. July 1, 1999; 

Amended Eff. Julx I. 2000. 



332 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



APPROVED RULES 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 4 - COMMISSION FOR AUCTIONEERS 

SUBCHAPTER 4B - AUCTIONEER LICENSING 
BOARD 

SECTION .0100 - ORGANIZATION AND GENERAL 
PROVISIONS 

.0102 BOARD OFFICE 

The administrative offices of the Board are located at; 

1001 Navaho Drive 

Suite 105 

Raleigh, North Carolina 27609-7318 

Telephone: (919)981-5066 
Office hours are 8:30 a.m. until 5:00 p.m.. Monday through 
Friday, except holidays. 

History Note: Aiithorhx G.S. 85B-3(f): 

Eff. November 1 , 1984: 

Amended Eff. June L 1999; July I. 1995: April 1. 1989. 

CHAPTER 46 - BOARD OF PHARMACY 

SECTION .1800 - PRESCRIPTIONS 

.1804 PRESCRIPTION: RECEIVING AND 
DISPENSING 



(a) In order to assure that the practitioner-pharmacist- 
patient relationship exists and to promote the safe and secure 
distribution of drugs and devices, prescription orders may be 
received for filling and refilling only by a pharmacist or a bona 
fide employee of the pharmacy. The pharmacist-manager of 
the phamiacy shall be ultimately responsible tor the safe, 
lawful and secure receipt of prescription orders and delivery of 
prescription drugs. Notwithstanding the provisions of this 
Rule, prescription drugs also may be delivered by mail in 
accordance with the provisions of 21 NCAC 46 .1601(b). 

(b) In filling or refilling prescription orders, the pharmacist 
shall not be required to deal with parties, including managed 
care companies and insurance providers, outside the 
practitioner-pharmacist-patient relationship. 

(c) In order to promote the safe and secure distribution of 
drugs, devices, and medical equipment, prescription orders 
may be received for filling and refilling only by the person in 
charge of the facility holding the device and medical 
equipment permit or a bona fide employee of the facility. The 
person in charge shall be ultimately responsible for the safe, 
lawful and secure receipt of prescription orders and delivery of 
prescription drugs, devices, and medical equipment. 



Histoiy Note: Authorm- G.S. 90-85.6: 90-85.32: 
Ejf. December I, 1983: 

Amended Ejf. Auaust L 2000: September 1. 1995: 
1989: August 1, 1988. 



Max 1, 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



333 



RVLES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. August 19, 1999. 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room. Raleigh, NC. Anyone wishing to submit written comment on any 
rule before the Commission should submit those comments to the RRC staff, the agency, and the individual 
Commissioners by Monday, August 16, 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the 
Rules Review Commission at 9 1 9-733-272 1 . Anyone wishing to address the Commission should notify the RRC staff and 
the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

Paul Powell. Chairman 

Anita While. 2"'' Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



August 19. 1999 
September 16. 1999 
October 21. 1999 



November 18, 
December 16, 



1999 
999 



LOG OF FILINGS 
RULES SUBMITTED: JUNE 20, 1999 THROUGH JULY 20, 1999 



agency/division 



RULE NAME 




RULE 




ACTION 


:rce/commerce finance center 






Background and Objectives 




4NCAC 11 


.0101 


Amend 


Definitions 




4NCAC 11 


.0102 


AiTicnd 


Date of Receipt of Applications 




4NCAC II 


.0201 


Amend 


Application Categories and Reqi 


jirements 


4NCAC II 


.0202 


Amend 


Review ol Applications and Funding 


4NCAC 11 


0301 


Amend 


Eligibility Requirements 




4NCAC 11 


.0302 


Amend 


Review: APP Funding 




4NCAC 11 


.0303 


Repeal 


Eligibility Requnements 




4NCAC 11 


.0304 


Repeal 


General 




4NCAC1I 


.0401 


Repeal 


Required Findings 




4NCAC 11 


.0402 


Amend 


Formal Applications Procedures 


Denial 


4NCAC 11 


.0403 


Amend 


Formal Application Procedures: 


Approval 


4NCAC 11 


.0404 


Amend 


Findings Requirements 




4NCAC 11 


.040.'> 


Repeal 


General 




4NCAC 11 


.0501 


Amend 


Limitations 




4NCACII 


.0502 


Amend 


Re\ersion of Funds 




4NCAC 11 


.0503 


Amend 


Reporting Requirements 




4NCAC 11 


.0601 


Repeal 


Annual Designation 




4 NCAC 1 1 


.0701 


Amend 


Compliance with NC Env. Rule:- 




4NCAC 11 


.(WOl 


Adopt 



DEPARTMENT OF LABOR 

Workplace Retaliatory Disc. Office 

DENR/SEDIMENTATION CONTROL COMMISSION 



13 NCAC 19.0101 



Amend 



334 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



RULES REVIEW COMMISSION 



Basic Control Objectives 
Mandatory Standards 
Plan Approval Certificate 

DENRAVILDLIFE RESOURCES COMMISSION 

Scope and Purpose 

Primary Nursery Areas Defined 

Descriptive Boundaries 

Pender County 

Burke County 

McDowell County 

Hoke County 

DENR/COMMISSION FOR HEALTH SERVICES 

Water Supply 

Cleaning of Equipment and Utensils 

DENRAVELL CONTRACTORS CERTIFICATION COMMISSION 

Duties of a Certified Well Contractor 

Definitions 

Schedule of Certification Fees 

Application Req. for Certification 

Submittal and Processing of Applications 

Well Contractor Examinations 

Time and Place of Examination 

Conducting and Grading Examination 

Examination Results and Issuance of Cert. 

Certification by Legislative Exemption 

Reciprocal Waiver of Exam for Cert. 

Temporary Certification 

Conditions/Limitations/Renewal of Cert. 

Establishment of Types of Certification 

Requirements 

Units 

Determination of Credit 

Recordkeeping 

Exemptions 

Revocation. Relinquishment or Expiration 

Recert. Following Revocation/Relinquish 

Notification lo the Department 

Civil Penalties 



I5NCAC4B.0106 


Amend 


I3NCAC4B .0107 


Amend 


15NCAC4B .0127 


Amend 


15NCAC IOC .0501 


Amend 


15NCAC IOC .0502 


Amend 


15NCAC IOC .0503 


Amend 


15NCAC 1 OF .0321 


Amend 


15NCAC 1 OF .0323 


Amend 


15NCAC 1 OF .0339 


Amend 


15NCAC 1 OF .0367 


Adopt 


15NCAC 18A.1611 


Amend 


15NCAC 18A.2618 


Amend 


15NCAC27.0101 


Adopt 


15NCAC27.0110 


Adopt 


15NCAC27.0201 


Adopt 


15NCAC27.0301 


Adopt 


15NCAC27.0401 


Adopt 


15NCAC27.0410 


Adopt 


15NCAC27.0420 


Adopt 


15 NC AC 27 .0430 


Adopt 


15NCAC27.0440 


Adopt 


15NCAC27.O501 


Adopt 


15NCAC27.0510 


Adopt 


1 5 NCAC 27 .0520 


Adopt 


15NCAC27.0601 


Adopt 


15 NCAC 27 .0701 


Adopt 


15 NCAC 27 .0801 


Adopt 


15 NCAC 27 .0810 


Adopt 


15 NCAC 27 .0820 


Adopt 


15 NCAC 27 .0830 


Adopt 


15 NCAC 27 .0840 


Adopt 


15 NCAC 27 .0901 


Adopt 


15 NCAC 27 .0910 


Adopt 


1 5 NCAC 27 .0920 


Adopt 


15 NCAC 27 .0930 


Adopt 



STATE BOARDS/NC LICENSING BOARD FOR GENERAL CONTRACTORS 

Increase in Limitation 21 NCAC 12 .0504 



Amend 



STATE BOARDS/NC BOARD OF PHARMACY 

Emergency Prescription Refill 



21 NCAC 46. 1815 



Adopt 



RULES REVIEW COMMISSION 

July 15. 1999 
MINUTES 

The Rules Review Commission met on June 17. 1999. in the Assembly Room of the Methodist Building. 1307 Glcnwood 
Avenue. Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell. Teresa Smallwood, Steven P. 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



335 



RULES REVIEW COMMISSION 



Rader, Jim Funderburk, John Arrowood, Laura Devan, R. Palmer Sugg, and Mark Garside. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 

The following people attended: 

Harry Wilson State Board of Education 

Dedra Alston DENR 

Dee Williams Slate Board of Cosmetic Art Examiners 

Emily Lee TRANSPORTATION/Division of Motor Vehicles 

APPROVAL OF MINUTES 

The meeting was called to order at 10:01 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the June 17, 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

12 NCAC 9A .0103: JUSTICE/Criminal Justice Education & Training Standards Commission - This Commission will meet on 
August 20. l'-'99 and the agency will respond after their Commission meets. 

12 NCAC 9B .0107, .011.\ .0201, .0202, .0203, .0204, .0205, .0206. .0226, .0227, .0228, .0232, .0233 and .0.305: 
JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission will meet on August 20, 1999 and 
the agency will respond after their Commission meets. 

12 NCAC 9C .0211. .0212, and .0213: JUSTICE/Criminal Justice Education & Training Standards Commission - This 
Commission will meet on August 20, 1999 and the agency will respond after the Commission meets. 

12 NCAC lOB .0103: JUSTICE/Sheriffs' Education & Training Standards - This Commission will meet on September 16. 1999 
and the agency will respond after the Commission meets. 

21 NCAC 141 .0104 and .0107: State Board of Cosmetic Art Examiners - No response was received from the agency. 

21 NCAC 14J .0208 and .0501 - State Board of Cosmetic Art Examiners - No response was received from the agency. 

21 NCAC 14L.0101 - State Board of Cosmetic Art Examiners - No response was received from the agency. 

21 NCAC 14N .01 13 - State Board of Cosmetic Art Examiners - No response was received from the agency. 

21 NCAC 140 .0101 and .0104 - State Board of Cosmetic Art Examiners - No response was received from the agency. 

21 NCAC I4P.0105. .0111. .0112, .0113, .01 14, and .01 16 - State Board of Cosmetic Art Examiners - No response was received 
from the agency. 

21 NCAC I6M .0101: Stale Board of Dental Examiners - The rewritten rule submitted by the agency was approved by the 
CoiTimission. 

21 NCAC 18B .0208: State Board of Examiners of Electrical Contractors - The rewritten rule submitted by the agency was 
approved by the Commission. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

2 NCAC 20B .0104: AGRICULTURE/Board of Agriculture - The Commission objected to this rule due to ambiguity. In (f), it is 
not clear what the amount of the reduced rate for exhibitors or concessionaires is. or conversely what standards the State Fair 
Manager will use in offering it. This objection applies to existing language in the rule. 



336 NORTH CAROLINA REGISTER August 16, 1999 14:4 



RULES REVIEW COMMISSION 



2 NCAC 43L .0309: AGRICULTURE/Board of Agriculture - The Commission objected to this rule due to ambiguity. In (f). it is 
not clear what the amount of the reduced rate for gate admission to the North Carolina Mountain State Fair for exhibitors and 
concessionaires is. or conversely, what standards the Western North Carolina Agricultural Center Manager is to use in setting it. 
This objection applies to existing language in the rule. 

2 NCAC 54 .0103: AGRICULTURE/ Agriculture and Consuiner Services - The Commission objected to this rule due to lack of 
necessity. It merely repeats S.L. 1998-212 s. 13.5(d) and is therefore unnecessary. 

2 NCAC 54 .0105: AGRICULTURE/Agriculturc and Consumer Services - TTie Commission objected to this rule due to 
ambiguity. S.L. 1998 -212 s. 13.5(c) requires the department to adopt rules that establish guidelines for distributing the funds in a 
fair and equitable manner. This rule purportedly implements that provision. It is totally unclear how the Commissioner will 
divide the money. 

10 NCAC I9G .0823: DHHS/Commission for the Blind - The Commission voted to return the rule to the agency because of its 
failure to adopt the rule in accordance with Article 2A of Chapter 1 508 of the General Statutes. Apparently this rule has never 
been adopted by the Commission. The Submission form indicates the rule was adopted August I. 2000 which is not possible. 
The agency has not responded to a written request to correct the form and in a telephone conversation the staff was not sure if the 
Commission had adopted the rule. If it has been correctly adopted, the agency may refile the rule at a later date. 

15A NCAC 7H .0309: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In 
(a)(1). it is not clear what constitutes a "substantial" permanent structure. Also in (a), it is not clear what constitutes a 
"significant" alteration. This objection applies to existing language in the rule. 

15A NCAC 7H .1805: DENR/Coastal Resources Commission - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (d). it is not clear what is meant by "significantly" increase erosion or "significant adverse effect on 
important natural and cultural resources." In (f). the added provision allowing the division to approve work from May 1 through 
November 15 is a waiver provision without specific guidelines in violation of G.S. 150B-19(6). This objection applies to existing 
language in the rule. 

I5A NCAC 7H .2105: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In (k). it 
is not clear what "other suitable materials" will be appro\ed by division personnel. This objection applies to existing language in 
the rule. 

16 NCAC 6C .0100. .0200, and .0300: STATE BOARD OF EDUCATION - The Coinmission voted to return the rules to the 
agency for failure to comply with the rulemaking procedures in Article 2A of Chapter 150B of the General Statutes. Tlie Board 
did not publish a notice of rulemaking proceedings for these rules in accordance with G.S. 150B-21.2(a)( I ). Presumably the basis 
for the failure to publish was Section 28 of Chapter 716 of the 1995 (Reg. Sess. 1996) Session laws, codified as G.S. 1 i5C-17, 
which allows rules directly related to the implementation of that act to be adopted omitting part of the process. The commission 
tound that there is no direct relationship. 

16 NCAC 6C .0501: STATE BOARD OF EDUCATION - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (g), it is not clear what rating scale is recommended by the State Board of Education. In (h), 
apparently the job descriptions and performance standards and criteria have not been adopted as rules. G.S. 1 15C-326 requires 
that thcN be adopted and there is no authority to ha\'e them otherwise. 

16 NCAC 6E .0202: STATE BOARD OF EDUCATION - The Commission voted to return the rule to the agency for failure to 
comply with the rulemaking procedures in Article 2 A of Chapter 150B of the General Statutes. The Board did not publish a 
n()tice of rulemaking proceedings for this rule in accordance with G.S. 150B-2 1 .2(a)( 1 ). Presumably the basis for the failure to 
publish was Section 28 of Chapter 716 of the 1995 (Reg. Sess. 1996) Session laws, codified as G.S. 1 15C-17. which allows rules 
directly related to the implementation of that act to be adopted omitting part of the process. The commission found that there is no 
direct relationship. 

16 NCAC 6G .0502: STATE BOARD OF EDUCATION - The Commission voted to return the rule to the agency for failure to 
comply with the rulemaking procedures in Article 2A of Chapter 150B of the General Statutes. The Board did not publish a 
notice of rulemaking proceedings for this rule in accordance with G.S.I 50B-2 1 .2(a)( 1 ). Presumably the basis for the failure to 
publish was Section 28 of Chapter 716 of the 1995 (Reg. Sess. 1996) Session laws, codified as G.S. i !5C-17. which allows rules 



14:4 NORTH CAROLINA REGISTER August 16, 1999 337 



RULES REVIEW COMMISSION 



directly related to the implementation of that act to be adopted omitting part of the process. The commission found that there is no 
direct relationship. 

16 NCAC 6H Rules: STATE BOARD OF EDUCATION - The Commission voted to return the rules to the agency for failure to 
comply with the rulemaking procedures in Article 2A of Chapter 150B of the General Statutes. The Board did not publish a 
notice of rulemaking proceedings for these rules in accordance with G.S. 150B-21.2(a)(l ). Presumably the basis for the failure to 
publish was Section 28 of Chapter 716 of the 1995 (Reg. Sess. 1996) Session laws, codified as G.S. 1 15C-17, which allows rules 
directly related to the implementation of that act to be adopted omitting part of the process. The commission found that there is no 
direct relationship. 

I9A NCAC 31 .0307: TRANSPORTATION/Division of Motor Vehicles - The Commission objected to this rule due to 
ambiguity. In (3)(d)(viii), it is not clear what reports are required by the division. This objection applies to existing language in the 
rule. 

19A NCAC 31 .0402: TRANSPORTATION/Division of Motor Vehicles - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. It is not clear what manner of inspection is required for each vehicle in (c). There is no 
authority to set requirements by form. This objection applies to existing language in the rule. 

19A NCAC 31 .0804: TRANSPORTATION/Division of Motor Vehicles - The Commission objected to this rule due to lack of 
statutory authority. There does not appear to be authority for the Commissioner to assess fines. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Mr. DeLuca reported that the President Pro Tempore would reappoint all Commissioners to the Rules Review Commission, the 
Speaker would reappoint George Robinson, and that Commissioners Rader and Garside would not likely be reappointed. He also 
reported that the NASS conference in St. Louis went very well. Mr. Bryan read all of the rules for this month and Mr. DeLuca 
will read all of the rules next month since Mr. Bryan is being married in two weeks.. Commissioner Rader made the motion and 
Commissioner Sugg made the second that the Commission go into Executive Session to discuss the Board of Pharmacy v. the 
Rules Review Commission. The Commission returned from Executive Session to adjourn at 1 1 :52 a.m. 

The next meeting will be on August 19, 1999. 

Respectfully submitted, 
Sandy Webster 



338 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge b\ 
contacting the Office of Administrative Hearings. (919) 733-2698. Also, the Contested Case Decisions are available on 
the Internet at the following address: http://www. state. nc.us/OAH/hearings/decision/caseinde.x.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E. Wade 



AGENCY 

ADMINISTRATION 

Bntihaven. Inc. v. Depanment ot Administration 

and 
Pnva-Trends. Inc. 
Laidla\\ Transit Svcs. Inc. v. Katie G Dorsett. Sec'y/Dept/ Administration 

OFFICE OF ADMINISTRATIVE HEARINGS 

Ted Murrell. Zam. Inc. v Ottice of Administralive Hearings 
Samuel Lee Ferguson v. Office of Administraiue Hearings 

AGRIfULTURE 

.Archie McLean v. Department of Agnculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v. Keyland, Inc.. T/A Cloud 9 
Alcoholic Beverage Control Commission v. Food Lion, Inc.. Store #1^5] 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 

CRIME CONTROL AND PUBLIC SAFETY 

Paul Richard Mull v. Cnme Victims Compensation Commission 
William Samuel McCraw v. Cnme Victims Compensation Commission 
Anson D. Looney v. Cnme Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Cnme Victims Compensation Comm. 

ENVIRONMENT AND NATIRAL RESOURCES 

R.J. Reynolds Tobacco Co. v. Dept. of Iinvironment & Natural Resources 
Willie Setzerv. Department of Environment & Natural Resources 
Charles H. Jordan v. Brunswick County Health Department 
Roadway Express v. Department of Environment and Natural Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NITMBER 


ALJ 


DECISION 


REGISTER CITATION 


98DOA08II 


Chess 


06/10/99 




99DOA0102 


Momson 


06/11/99 


14:02 NCR 115 


99 OAH 0665 


Chess 


07/14/99 




99OAH07I8 


Chess 


07/16/99 




98 DAG 1770 


Reilly 


07/12/99 


14:05 NCR 349 


98 ABC 1099 


Overbv 


01/17/99 




98 ABC 1270 


Grav 


0.V31/99 


14:05 NCR Ml 


99 ABC 0407 


Momson 


07/09/99 




98 CPS 0.^42 


Chess 


07/26/99 




98CPS 1626 


Momson 


06/09/99 




99 CPS 0096 


Momson 


0.5/2.5/99 




99 CPS 0.S04 


Reilly 


07/29/99 




98EHR 1.115 


Wade 


06/04/94 


14:02 NCR 110 


99EHR0166 


Chess 


06/28/99 




99EHR020I 


Momson 


06/28/99 




99 EHR 0745 


Momson 


07/27/99 





14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



339 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Division of Air Quality 

Terrance W Bache. Pres., Terhane Group, Inc. v. DENR. Div/Air Quality 98 EHR 1790 Mann 

Environmental Management 

Allen Raynor v. Environmental Management Commission 99 EHR 0127 Gray 

Division of Land Resources 

Buel B Barker. Jr and Hubbard Really of Wmston-Salem, a NC Corp.. 98 EHR 1457 Momson 

lointiy and severally v Depl ot Environment and Natural Resources. 
Div of Land Resources 



06/2.V99 



07/27/99 



06/09/99 



( 



Division of Water Quality 

York Oil Company v, DENR, Division of Water Quality 

J. Todd Yates and Teresa B. Yates v. DENR, Div. of Water Quality 

BOARD OF GEOLOGISTS 

Andrew M Rarinj;, Ph D v. Board for the Licensing of Geologists 

HEALTH AND HUMAN SERVICES 

Emesl Clyde Absher and Dianna B Absher v Health & Human Resources 

Andrew Gainey v. Office of the Chief Medical Examiner 

J. P. Lynch v. Depanmenl of Health & Human Services 

New Hope Living Centers, Enc D. Lewis v. Health & Human Services 

Frank McKoy v. Department of Health & Human Services 

Lonnie Hemng v. Department of Health & Human Services 

Robert H. Riley \ Office of the Governor, Oftlce of Citizen Services 

Division of Child Development 

Shaw Speaks Child De\ Ctr \ Health A: Human Svcs , Child Dev 
Lachelle L. Parsons v. Health & Human Svcs. Div. ot Child De\ 
In The Beginning, Inc. v. Health & Human Svcs.. Div. of Child Dev. 
Dulatown Outreach Center, Inc v. Health & Human S\'cs., Child De\ . 

Division of Facility Services 

Kelly M Poole v Health & Human Services, Div of Facility Services 
Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 
Delia C. Jones v. Health & Human Services. Div. of Facility Services 
Effie Ruth Smith v. Health & Human Svcs , Div. of Facility Services 
Norma Faye Lewis v. Health & Human Svcs.. Div. of Facility Services 
Carolyn Grant v. Health & Human Services, Div of Facility Services 
Sarah Frances Alford v. Health & Human Svcs., Div. of Facility Svcs. 
Alvin L. Phynon Jr. v Health & Human Svcs., Dept. of Facility 
Esther Nieves v. Health & Human Services. Div. of Facility Services 

Division of Medical Assistance 

Companion Health Care, Inc v. Div. of Medical Assistance, DHR 

Division of Social Senices 

Rohen H. Riley v Iredell County DSS 

Robert H Riley \. Health & Human Svcs . Di\ . of Social Services 

Joanna Pnce v. Caldwell County Social Services 

Child Sui'piiri Eiifiinenwitt Sectitin 
Lindy Teachout v Department of Health & Human Services 
Thomas Ashley Stewart II v. Department of Health & Human Services 
Richard Arnold Collins v. Jones County DSS 
Kenneth Wayne Adair v. Department of Human Resources 
Hun G. Stokes v. Department of Health & Human Services 
G.S. Hall v Department of Health &. Human Services 
Donald Edward Law II \ Department ot Human Resources 
Robert M Chandler Jr, v, Depanment of Health & Human Services 
Grady L Chosewood v. Department of Health & Human Services 
Fulton Allen Tillman v. Depanment of Health & Human Services 
Nathaniel Alston v Depanment of Health & Human Services 
Bret Bunrum v Department of Health & Human Services 
Dane Wesley Ware v Depanment of Health & Human Services 
Oscar William Willoughby Sr. v. Dept. of Health & Human Ser\ ices 
KeUin E. Townsend v. Department of Health & Human Services 
Billy J Young v Depanment of Health & Human Services 



97 EHR 1026 


Phipps 


07/26/99 


4:05 NCR .14.1 


98 EHR 14.% 


Wade 


06/22/99 




99 BOG 0150 


Mann 


06/16/99 




98 DHR 1622 


ReilK 


06/17/99 




98 DHR 1761 


Owens 


0.5/12/99 


4 01 NCR 69 


99 DHR 01 11 


Reilly 


05/25/99 




99 DHR 0170 


Owens 


0.5/2.5/99 




99 DHR 0226 


Wade 


07/06/99 




99 DHR 0.^50 


Reilly 


06/0.1/99 




99 DHR 0.^.-16 


Wade 


07/21/99 




99 DHR 0042 


Gray 


07/22/99 




99 DHR 044.5 


Reilly 


07/19/99 




99 DHR 0.57.5 


Mann 


07/19/99 




99 DHR 0688 


Owens 


07/21/99 




97 DHR 0629 


Chess 


06/14/99 




98 DHR 1274'' 


Phipps 


07/02/99 




98 DHR 1680 


Gray 


06/09/99 




98 DHR 1774 


Chess 


07/14/99 




99 DHR 0144*' 


Phipps 


07/02/99 




99 DHR 0145 


Mann 


06/11/99 




99 DHR 0220 


Phipps 


06/08/99 




99 DHR 0210 


Mann 


07/07/99 




99 DHR 0766 


Phipps 


07/21/99 




99 DHR 0762 


Owens 


07/29/99 




99 DHR 0.1.54 


Wade 


07/21/99 




99 DHR 0.155 


Wade 


07/21/99 




99 DHR 0520 


Momson 


06/10/99 




98 CRA 0727 


Reilly 


06/24/99 




99CRA0628 


Reilly 


06/14/99 




96CSE 1810 


Reilly 


06/28/99 




98 CSE 0229 


Morrison 


06/.10/99 




98 CSE 0898 


Gray 


07/2.1/99 




9SCSE 1.192 


Reilly 


06/24/99 




98 CSE 1586 


Momson 


06/25/99 




98 CSE 1789 


Phipps 


05/27/99 




99 CSE 0.10 1 


Mann 


07/01/99 




99 CSE 0.1 11 


Reilly 


06/.10/99 




99 CSE 0.1 1 7 


Mann 


07/01/99 




99 CSE 0.1 18 


Wade 


07/14/99 




99 CSE 0.159 


Gray 


06/28/99 




99 CSE 0.171 


Momson 


06/28/99 




99 CSE 0171 


Phipps 


07/12/99 




99 CSE 0174 


Reilh 


06/14/99 





{ 



340 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



CONTESTED CASE DECISIONS 



AGENCY 

Adelheide J. Cooper v. Department of Health & Human Services 
Beverly K. Thompson v. Department of Health & Human Sei^ices 
Michael L. Timmer v. Department of Health & Human Services 
Elizabeth F. West v. Department of Health & Human Services 
Troy Gibson v. Department of Health & Human Services 
Roy D Washington v. Department of Health & Human Ser^'ices 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v. Department of Health & Human Services 
Charlie James White v. Department of Health & Human Services 
Kathryn P- Fagan v. Department of Health & Human Services 
Deborah Seegars v. Department of Health & Human Services 
Lillian Anne Dartoch v. Department of Health & Human Services 

JUSTICE 

Alarm Systems Licensing Board 

Terry Allen Bnckey v. Alarm Systems Licensing Board 
Trax'is Enc Reardon v. Alarm Systems Licensing Board 
Bnan Anthony Bartimac v Alarm Systems Licensing Board 
Melvin T, Lohr v. Alarm Systems Licensing Board 
Bradford D- Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v. Alarm Systems Licensing Board 
Donald Eugene Boger v. Alann Systems Licensing Board 
Kajur Washburn \ . Alarm Systems Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards \'. Cnminal Justice Ed & Training Stds, Comm. 
Anthony Scott Hughes v. Shenffs' Ed. & Training Standards Comm 
Hal Pilgreen v Cnminal Justice Ed & Training Stds Comm 
Emma J. Kiser v. Shenffs' Ed- & Training Standards Comm 
Keith Allen Noms \' Shenffs" Ed & Training Standards Comm 
Sherry Da\ is Kenney \ , Cnminal Justice Ed. &. Training Stds. Comm. 

Private Protective Services Board 

ThoiTias E. Mewbom \. Pn\ate Protective Services Board 
Michael Lynn Arter v. Pnvate Protective Services Board 
Jeffre\ S. Moore v. Pnvate Protective Services Board 
Bonnie Mane Keller v. Pnvate Protective Services Board 
Shawn E. Alexander \' Pnvate Protective Services Board 
Ronald E. Sulloway v. Pnvate Protective Services Board 
Raymond Solomon v. Private Protective Services Board 
Charles E Evans. Jr. v. Pnvate Protective Services Board 
William E, Ellis. Sr. v Pnvate Protective Services Board 

PUBLIC INSTRUCTION 

S.H, by and through her guardian and custodian. H,H. and H H v 

Henderson Count\ Board of Education 
S LP and S F.F. v. Charlotte-Mecklenburg Board of Education 

STATE PERSONNEL 



CASE 




DATE OF 


NUMBER 


AL| 


DECISION 


99 CSE 0428 


Phipps 


07/19/99 


99 CSE 04.^? 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


06/08/99 


99 CSE 04? 1 


Momson 


05/25/99 


99 CSE 0462 


Owens 


07/19/99 


99 CSE 0481 


Reillv 


06/25/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0.581 


Morrison 


06/09/99 


99 CSE 0690 


Momson 


07/20/99 


98 DCS 1769 


Momson 


06/25/99 


99 DCS 0.505 


Phipps 


06/.10/99 


99 DCS 0555 


Grav 


07/06/99 



PUBLISHED DECISION 
REGISTER CITATION 



99 DOJ 0097 


Wade 


0.5/21/99 




99 DOJ 0446 


Phipps 


07/28/99 




99 DOJ 04S7 


Momson 


0.5/25/99 




99 DOJ 0490 


Momson 


05/24/99 




99 DOJ 0522 


Momson 


06/08/99 




99 DOJ 052,^ 


Momson 


06/08/99 




99 DOJ 0715 


Owens 


07/29/99 




99 DOJ 0716 


Owens 


07/29/99 




98 DOJ 0906 


Chess 


05/13/99 




98 DOJ 1 5.30 


Chess 


05/12/99 




98 DOJ 1775 


Chess 


06/09/99 




98 DOJ 1793 


Gray 


06/07/99 




99 DOJ 0045 


Mann 


07/29/99 


4 05 NCR 351 


99 DOJ 0067 


Wade 


06/08/99 




99 DOJ 0101 


Owens 


07/30/99 




99 DOJ 0262 


Wade 


05/25/99 




99 DOJ 0488 


Momson 


05/24/99 




99 DOJ 0491 


Momson 


05/24/99 




99 DOJ 0492 


Owens 


07/19/99 




99 DOJ 0493 


Momson 


05/24/99 




99 DOJ 0494 


Momson 


05/25/99 




99 DOJ 0496 


Momson 


05/25/99 




99 DOJ 0527 


Momson 


06/08/99 




98EDC 1124 


Mann 


06/11/99 




98EDC 1649 


Mann 


06/04/99 





Department of Agriculture 

HC Troxler. Jr. V Dept of Agnculture and Consumer Services 

Community Colleges 

Thomas Michael Chamberlm v. Department of Community Colleges 

Correction 

E, Wayne Irvin \', Department of Conection 

Deborah Smith v. Department of Correction 

Maydean L. Taylor v. Department of Correction 

Ann McMillian v. Momson Youth Institution, Department of Conection 

DeCarlos Stanley \ Department of Conection 

Harry E Kenan v. Capt. BE. Lewis, Polk Youth Institution 

Richmond Fulmore v Department of Correction, Wake Conectional 

Jerry D, Crawford v Department of Conection 

,\ortli Carolina School for the Deaf 

Enc Arden Hurley \ North Carolina School for the Deaf 



99 OSP 0659 


Chess 


99OSP02S6 


Phipps 


94 OSP 1791 


Momson 


98 OSP 1126 


Chess 


98 OSP 1272 


Chess 


98 OSP 1275 


Chess 


99 OSP 0027 


Momson 


99 OSP 0257 


Phipps 


99 OSP 0416 


Mann 


99 OSP 0577 


Reilly 


99 OSP 0087 


Reilly 



07/27/99 



06/25/99 



0.5/18/99 
06/22/99 
05/14/99 
05/12/99 
06/22/99 
06/07/99 
06/04/99 
06/02/99 



06/24/99 



14 01 NCR 60 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



341 



CONTESTED CASE DECISIONS 



Employment Security Commission 

Russell J Suga v Employment Secunty Commission 

Health and Human Services 

Ivey G- Rhodes v. Pitt County Mental Health Center 

Dons Virginia Wearing v. Durham County Health Department 

Julia A. Cameron v. John Umstead Hospital. Health & Human Services 

Jency Abrams v. Department of Health & Human Services 

Odell Hudson v. Health & Human Svcs., Dorothea Dix Hospital 

Erica Joynes v. Durham County Department of Social Ser\ ices 

Johnston County 

Lili Romaine Lee v. County of Johnston 

Justice 

Thomas Michael Chamherlin \', Justice. Jusnce Academy 

Labor 

Robert C Adams v Depanment of Labor 

Transportation 

Charles W. McAdams v, Dept, of Transportation. Div/Motor Vehicles 
Larry R. Lane v. Department of Transportation 
Ronald Roberson v. Dept. of Transportation. Right-of-Way Branch 
Shelvia Davis v. Department of Transportation 

University of Sorth Carolina 

Vivian Smith Hammiel. LingChih C. Hsu and Joel A, Williams v, Ea.st 

Carolina University 
Vivian Smith Hammiel. Lmg-Chih C, Hsu and Joel A Williams v ta.st 

Carolina University 
Vivian Smith Hammiel. Lmg-Chih C, Hsu and Joel A. Williams v East 

Carolina University 
Jackie S. Rowers v. East Carolina University 

Anna Anita Huff v Dr. Lonnie Sharpe/Dr Reza Salami-Coll /Eiigineenng 
Halycon Tudie Blake v University of North Carolina at Chapel Hill 

DEPARTMENT OF TRANSPORTATION 

Peter Kay . Stem \ Department of Transportation 

UNIVERSITY OF NORTH CAROLINA 

Stephanie A. Payne v. UNC Hospitals 
Robin Perkins Stephens \ UNC Hospitals 



%OSP 1122 


Reilly 


05/26/99 


98 OSP 0924 


Phipps 


07/09/99 


98 0SP 14.12 


Reilly 


06/18/99 


99 OSP OO.S.I 


Momson 


06/22/99 


99 OSP 0147 


Owens 


07/19/99 


99 OSP 0609 


Grav 


07/07/99 


99 OSP 0671 


Gray 


07/13/99 


99 OSP 0456 


Momson 


06/02/99 


99OSP0.W8 


Phipps 


06/11/99 


99 OSP 0667 


Gray 


07/28/99 


99 OSP 00.14 


Mann 


06/23/99 


99 OSP 0105 


Mann 


06/11/99 


99 OSP 0142 


Momson 


06/08/99 


99 OSP 01.56 


Owens 


06/23/99 


97 OSP 1268'- 


Phipps 


07/06/99 


97 OSP 1269*- 


Phipps 


07/06/99 


97 OSP 1270*- 


Phipps 


07/06/99 


98 OSP 1618 


Reillv 


06/24/99 


99 OSP 0599 


Chess 


07/16/99 


99 OSP 0686 


Gray 


07/08/99 


99 DOT 0668 


Owens 


07/29/99 


99 UNC 0.175 


Morrison 


06/21/99 


99 UNC 056.1 


Owens 


07/21/99 



Consolidated Cases 



342 



NORTH CAROLINA REGISTER 



August 16, 1999 



14:4 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF FORSYTH 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

97 EHR 1026 



YORK OIL COMPANY 
Petitioner, 



) 
) 
) 
) 

V. ) 

) 

NORTH CAROLINA DEPARTMENT OF ENVIRONMENT ) 

AND NATURAL RESOURCES. DIVISION OF WATER ) 

QUALITY ) 

Respondent. ) 

) 



RECOMMENDED DECISION 



STATEMENT OF THE CASE 

The above entitled matter was heard before the Honorable Meg Scott Phipps. Administrative Law Judge, on June 18, 
1999, m High Point. North Carolina. This case involves the denial of trust fund eligibility to York Oil Company by Respondent. 

APPEARANCES 

Y'ork Oil Company ("York Oil"), the Petitioner, was represented by Stephen R. Berlin and Jason Link. Attorneys at Law. 
The Department of Environment and Natural Resources, the Respondent, was represented by James P. Longest. Jr. and Jennifer 
May-Parker, Assistant Attorney Generals. N.C. Department of Justice. 

ISSUE 

Whether Respondent properly denied York Oil's eligibility for trust fund reimbursement under the facts of the case. 

FINDINGS OF FACT 

1. In February 1979. David Clark bought the One-Stop property store which is located on Vance Road in Kerncrsville, 
Winston-Salem. North Carolina. 

2. The One-Stop property contained underground storage tanks. 

.^. In July 1979. York Oil bought the underground storage tanks ("USTs") located on the One-Stop property. 

4. The tanks were commercial USTs and subject to the UST rules as promulgated by the Department of Environment and 
Natural Resources ("DENR"). 

5. In 1986, Walter and Nancy James, neighbors of One-Stop, complained to DENR that their well water was contaminated 
with gasoline. 

6. The James well was located one hundred fifty ( 1 50 1 teet downgradient from the USTs on the One-Stop property. 

7. The One-Stop store was the t)nly property with USTs within a half mile of the surrounding area. 

8. As a result of the James' complaint. Brenda Smith and Stephen Kay of DENR visited the James property and took 
samples of their well in July 1986. 

9. In September 1986. the Forsyth Health Department sent a letter to David Clark warning him that they suspected 
petroleum contamination at the One-Stop property 

10. In September 1986. the Winston-Salem Journal printed a newspaper article which stated that, according to test 
performed by DENR. the James" well was contaminated with petroleum. David Clark acknowledged reading the article 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



343 



CONTESTED CASE DECISIONS 



and sending it to Yori< Oil. 

11. After sending the article to York Oil. David Clark called to make sure York Oil had received it. York Oil acknowledged 
receipt of the article and told Mr. Clark it would be handled. 

Gary York was made aware of the petroleum contamination problem at the James well in 1986. 

12. On November 5, 1986, Stephen Kay of DENR visited the One-Stop store and spoke with David Clark and Mike Carroll, 
the store's manager. 

13. Stephen Kay learned from Mr. Clark and Mr. Carroll that the One-Stop bought bottled water. Since both men thought 
that the store's water was obviously contaminated. 

14. Mr. Clark told Stephen Kay that the contamination of the One-Stop water became obvious within two years of the 
digging of the One-Stop well in 1982. 

15. On November 17, 1986. Collins Petroleum was hired by York Oil to dig down beside the USTs at the One-Stop property 
to check for leaks. 

16. Collins Petroleum found no leaks. 

17. Collins Petroleum did not check the tank lines or take soil samples at the One-Stop property. 

18. On December 15, 1986. Stephen Kay prepared a Pollution Incident Reporting Form ("'PIRF"), noting One-Stop as the 
only possible source of the contamination. 

19. In March 1988, DENR recovered two and one half feet of free product from monitoring wells placed on the One-Stop 
property. 

20. Monitoring wells were strategically placed to establish that the contaminants were tlowing in the groundwater from the 
One-Slop property to the James" property. 

21. On December 9. 1988, Walter James and other neighbors filed a complaint against Petitioner alleging that Petitioner and 
David Clark were liable for petroleum contamination of Mr. James' well. Summary Judgment was granted in favor of the 
Defendants on the basis that the statute of limitations had run against Walter James. The Court of Appeals reversed the 
trial court's gram of summary judgment. Sec Jcuiies v. C/(//i. 1 18 N.C. App. 178. 454 S.E.2d 826 (N.C. App. 1995). 

22. On February 10. 1989. DENR issued a Notice of "Violation to David Clark and York Oil for groundwater contamination. 

23. The USTs at the One-Stop property were removed in March of 1989. 

24. In April 1997. York Oil applied to the Petroleum Underground Storage Tank Cleanup Fund ("Trust Fund") for eligibility 
for reimbursement of cleanup costs. 

25. On June 17. 1997, DENR denied York Oil eligibility for Trust Fund reimbursemenl. since DENR determined that the 
release discovery date was priiir to June 30. 1988. the effective date of the cleanup fund. 

26. On August 1 5. 1 997. York Oil appealed DENR"s denial to the Office of Administrative Hearings. 

27. On April 15, 1999. York Oil filed a Motion for Summary Judgment with Administrative law Judge Meg Scott Phipps. 

28. On May 4. 1999. DENR file its response to Petitioner" s Motion for Summary Judgment. 

29. TTic hearing on the Summary Judgment Motions was held on June 18, 1999. at the New County Courthouse in High 
Point. North Carolina. 

30. At the hearing. Respondent orally amended its response to cross-motion for Summary Judgment. The amendment v\as 
accepted by Judge Meg Scott Phipps. 



344 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

Based on the foregoing Findings of Fact, I make tiie following Conclusions of Law: 

1 . The parties are properly before the Office of Administrative Hearings. 

2. The burden of proof is upon the Petitioner to show that the Respondent either exceeded its authority or jurisdiction; acted 
erroneously; failed to use proper procedure; acted arbitrarily or capriciously; or failed to act as required by law or rule 
when Respondent denied Petitioner eligibility for reimbursement of cleanup cost from the Commercial Leaking 
Petroleum Underground Storage Tank Cleanup Fund. 

3. G.S. § 143-215.94 N(a) provides as follows: 

The provisions of this part as they relate to cost paid from the commercial fund apply only to 
discharges or releases that are discovered or reported on or after 30 June 1988 from a 
commercial underground storage tank. 

4. NCAC 15A 2P .0202(4) states that a "Discovered release" means a release which an owner or operator, or its employee 
or agent, has been made aware of, has been notified of, or has a reasonable basis for knowing has occurred. 

5. The N.C. Court of Appeals held that the statute of limitations began to run against Mr. James in 1986, when he first 
associated the contamination in his well with petroleum and received no test results confirming petroleum contamination 
until 1986. Answers to Discovery in that case establish that the Petitioner was aware of petroleum contamination in Mr. 
James well in 1986. 

6. The facts established that David Clark had been made aware of, and had been notified of and/or had a reasonable basis 
for knowing that a release had occurred from the USTs on the One-Stop property in 1986. 

7. Knowledge on the part of David Clark or his employees of a release prior to June 30, 1988, bars York Oil from accessing 
the Trust Fund. 

8. Petitioner has failed to prove that the Respondent either exceeded its authority or jurisdiction; acted erroneously; failed to 
use proper procedure; acted arbitrarily or capriciously; or failed to act as required by law or rule when Respondent denied 
Petitioner's eligibility for Trust Fund reimbursement based on its determination that the release discovery date was not on 
or after June 30, 1988 as required by G.S. § 143-215.94 N(a). 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law. it is hereby recommended that Respondent's denial 
of Petitioner's eligibility for reimbursement as set forth in its letter dated June 17, 1997, be upheld as the final agency decision in 
this contested case. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh. North Carolina 2761 1-7447, in accordance with GS §150B-36(b). 

NOTICE 

The agency making the final decision is this contested case is required to give each party an opportunity to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 
§150B-36(a). 

The agency is required by G.S. §150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy of 
the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Department of Environment and Natural 



14:4 NORTH CAROLINA REGISTER August 16, 1999 345 



CONTESTED CASE DECISIONS 



Resources. 

This the 26th day of July, 1999. 



Meg Scott Phipps ■ 

Administrative Law Judge 



( 



346 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF MECKLENBURG 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

98 ABC 1270 



NC ABC COMMISSION 
Petitioner, 

V. 

FOOD LION. INC. 
T/A FOOD LION STORE #1351 
Respondent. 



RECOMMENDED DECISION 



The above captioned case was heard in Charlotte, North Carohna on March 2, 1999 before Beecher R. Gray, 
Administrative Law Judge. 

APPEARANCES 

Petitioner: LoRita Pinnix. Assistant Counsel 

North Carolina ABC Commission 

Respondent: Glenn B. Lassiter, Jr.. Attorney at Law 

ISSUES 

Did Respondent's employee violate G.S. 18B-302(a)( 1) on or about March 19. 1998 at 11:20 p.m. by selling malt 
beverages to Joseph John Lopke, a person less than 21 years of age. on the licensed premises, and if so, what penalty, if any, 
should the ABC Comirussion impose? 

FINDINGS OF FACT 

1. Food Lion, Inc. holds ABC perinits for the off-premise sale of malt beverages and wine at its store #1351 
located at 9323 North Tryon Street in Charlotte, North Carolina. It held those permits on the dale in question. 

2. On March 19. 1998. Mecklenburg County ABC Law Enforceinenl Agent R. N. Bates was conductmg 
surveillance outside Food Lion #1 3.51 . 

3. At about 1 1 :20 p.m.. Agent Bates observed a white male that he believed might be underage enter the store. 

4. Agent Bates later observed this white male approach a checkout register and purchase malt beverages. 

5. The white male exited the store, entered a vehicle, drove off and was stopped by Agent Bates about a half mile 
down the street. 

6. The white male was in possession of malt beverages. Agent Bates attempted to identify the white male by 
requesting a driver's license. 

7. Agent Bates attempted to serve a subpoena for the hearing on John Joseph Lopke. the person he believed the 
white male in question to be. 

8. Agent Bates was unsuccessful in serving the subpoena. Neither John Joseph Lopke nor any other witness other 
than Agent Bales appeared for the Petitioner at this hearing. 

9. The Petitioner was unable to pix)duce adinissible evidence at the hearing to identify the white male in question as 
John Joseph Lopke. 



14:4 



NORTH CAROLINA REGISTER 



August 16, 1999 



347 



CONTESTED CASE DECISIONS 



10. The Petitioner was unable to produce admissible evidence at the hearing to prove that John Joseph Lopke was 

less than 21 years of age on March 19. 1998. 

CONCLUSIONS OF LAW 

1. The Office of Administrative Hearings has proper jurisdiction in this case. 

2. TTie parties received proper notice of this hearing. 

3. The Petitioner has failed to establish through substantial admissible evidence that a violation of sale to an 
underage person occurred as alleged. 

4. The attempts of Petitioner to proffer hearsay evidence of the identity and age of the white male in question under 
Rule 804(b)(3l are not supported by sufficient admissible evidence to establish the prerequisites necessary for 
the admission of such hearsay under that rule in the case at bar. Even assuming, arguendo, that the declarant 
was "unavailable" as required under Rule 804, there is a lack of admissible evidence available to establish that 
the hearsay statements in question were against the interest of the declarant to such a degree as to allow their 
admission under that exception in this case. 

RECOMMENDED DECISION 

It is hereby recommended that the charges against the Respondent be DISMISSED. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Oftlce of Administrative Hearings, P.O. 
Drawer 27747. Raleigh. N.C. 2761 1-7447. in accordance with North General Statute 150B-36(b). 

NOTICE 

The agency making the Final Decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. 
G.S. 130B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the 
parties' attorney on record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic Beverage Control 
Commission. 

This is the 31^' day of March, 1999. 



Beecher R. Gray 
Administrative Law Judse 



348 NORTH CAROLINA REGISTER August 16. 1999 14:4 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF HARNETT 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

98 DAG 1770 



ARCHIE MCLEAN, 
Petitioner, 



DEPARTMENT OF AGRICULTURE, 
Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on July I. 1999. in Fayetteville. The 
petitioner appeared pro se. The respondent was represented by Melissa H. Taylor. The petitioner presented two witnesses. The 
respondent presented three witnesses and introduced Exhibits #1-25. The respondent filed a proposed recommended decision on 
July?, 1999. 

At the beginning of the hearing, the undersigned handed the petitioner a copy of the Notice of Violations and Assessment 
of Civil Penalty document dated October 18. 1998. Petitioner stated that he admitted the violations of the North Carolina 
Compulsory Meat Inspection Law contained in the Notice of Violations and Assessment of Civil Penalty document. Therefore, 
the hearing proceeded regarding only the amount of penalty. 

ISSUE 

What penalty should be assessed against the petitioner for the violations contained in the Notice of Violations and 
Assessment of Civil Penalty document dated October 18. 1998? 

FINDINGS OF FACT 

1. On February 13, February 20. March L\ April 2 and April 17. 1998. respondent investigated petitioner for 
slaughtering, processing and selling uninspected meat products at his property located at 362 Raynor McLamb Road. Bunn Level. 
Respondent detemiined that petitioner was not a federal, state or county health inspected facility. 

2. During these investigations, respondent observed a concrete block building behind petitioner's residence in 
which meat products, specifically pork, were being processed and sold. On the dates listed above, respondent purchased 
uninspected and unlabeled meat products. On two occasions, respondent purchased hog lungs which are adulterated product and 
are unfit for human food. 



3. On these dates, respondent observed very unsanitary conditions in the processing area. Respondent did not 
observe the availability of any running water. 

4. On April 17, 1998. respondent observed petitioner and other workers conducting hog slaughtering processes 
behind the cinder block building on petitioner's property. Respondent observed hog carcasses being bled, scalded and cut up for 
further processing. Respondent also purchased a set of hog lungs that were hanging from a tree. 

.5. On May 20. 1998, respondent executed a search warrant for petitioner's property located at 362 Raynor 

McLamb Road, Bunn Level. During that search. Respondent detained approximately 2,700 pounds of uninspected pork meat 
products on petitioner's property. The petitioner voluntarily destroyed the meat. Respondent also observed unsanitary conditions 
in which the meat was processed and stored. 

6. Respondent observed numerous insect and rodent material on the floor of the building, as well as. tlies in the salt 

pork meat and on the pork sausage hanging from the ceiling. Respondent did not observe any running water, either hot or cold, in 
the cinder block building used for processing the pork. 



7. 



Respondent also observed the slaughter area which indicated that large numbers of animals had been slaughter. 



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349 



CONTESTED CASE DECISIONS 



Respondent observed numerous bone pieces on the ground, mounds of hog hair, tripods for hanging the carcasses, scalding vats 
and iron wash pots for rendering lard. The slaughter area was in an unsanitary condition. 

8. Dr. David T. Marshall, Director of the Meat and Poultry Inspection Service of the North Carolina Department of ^ 
Agriculture and Consumer Services, testified that in his eleven years of being the Assistant Director and Director of the Meat and ■ 
Poultry Inspection Service, he had not seen a worse case of violations of the North Carolina Compulsory Meat Inspection Law. 

9. The factors that Dr. Marshall used to assess the civil penalty were ( 1 ) the extent of the operation, (2) how much 
meal was being processed and (3) the unsanitary conditions of the facility. 

10. Based on these factors and the evidence presented. Dr. Marshall testified that he originally would have assessed 
the maximum penalty of $5,000.00. However, because petitioner was cooperative and destroyed the approximately 2,700 pounds 
of pork product that was detained, the penalty was set at $2,500. 

CONCLUSIONS OF LAW 

1. Petitioner violated NCOS §§ 106-549.17, 106-549.18, 106-549.23(a)(3)(a) and (b). 

2. NCOS § 106.549.35(c) provides that a civil penalty of not more than fi\e thousand dollars ($5,000) maybe 
assess against any person who violates a provision of this Article or Article 49B, or any rule promulgated thereunder. The degree 
and extent of harm caused by the violation shall be considered in assessing the penalty. The respondent properly imposed a 
penalty of $2,500. The petitioner argued that he lacked the financial ability to pay the fine. The undersigned suggests that the 
petitioner send documentation of his financial status for consideration by the respondent concerning whether any adjustment 
would be appropriate. 

RECOMMENDED DECISION 

It is recommended that the respondent's civil penalty assessment of $2,500.00 be upheld. 

NOTICE 

The agency that will make the final decision in this contested case is the Department of Agriculture. It will give each 
party the opportunity to file exceptions to the recommended decision and to present written arguments. The agency will serve a 
copy of the final decision on all parties, the attorneys of record and the Office of Administrative Hearings. 

This the 9"' day of July, 1999. 



( 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judtie 



350 NORTH CAROLINA REGISTER August 16. 1999 14:4 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ONSLOW 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 DOJ 0045 



KEITH ALLEN NORRIS. 
Petitioner, 



N.C. SHERIFFS' EDUCATION AND TRAINING 
STANDARDS COMMISSION, 
Respondent. 



PROPOSAL FOR DECISION 



For Petitioner: 



The contested case was heard before Chief Administrative Law Judge Julian Mann. Ill, on Friday. May 14. 1999, in the 
Carolina Beach Municipal Administration Buildmg. Carolina Beach. North Carolina. 

APPEARANCES 

Walter W. Vatcher 

GAYLOR. EDWARDS & VATCHER 

219 New Bridge Street 

P.O.Box 1057^ 

Jacksonville, NC 28541-1057 

Attorney for Petitioner 

John J. Aldridge. Ill 

Assistant Attorney General 

North Carolina Department of Justice 

P.O. Box 629 

Raleigh. NC 27602-0629 

Attorney for Respondent 

EXHIBITS 

Petitioner's Exhibits #1 through #6. 
Respondent's Exhibits #1 through #18. 



For Respondent: 



For Petitioner: 
For Respondent: 



The parties entered into the following stipulation of facts (Respondent Exhibit No. 1 ) quoted below: 

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that 
both parties received proper notice of hearing required pursuant to N.C.G.S. 150B-38 and that Petitioner received notice of the 
Proposed Revocation of his justice officer certification mailed by Respondent on December 3. 1998. 

2. The North Carolina Sheriffs" Education and Training Standards Commission (Respondent) has the authority 
granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, 
Chapter 10. Subchapter lOB. to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such 
certification. 

3. On July 14. 1992. Petitioner completed a Personal History Statement (Form F-.^) as a part of the application with 
Respondent for certification as a detention officer with the Onslow County Sheriff's Office. Question number 47 of that form 
asks; "Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal oflence'.' Petitioner did not 
answer this question. 

4. On June 24. 1997, Petitioner completed another Personal History Statement (Form F-3) as a part of there- 
application process with Respondent lor certification as a justice officer with the Onslow County Sheriff's Office. On this form 



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351 



CONTESTED CASE DECISIONS 



he answered Question number 47 which asks. "Have you ever been arrested by a law enforcement officer or otherwise charged 
with a criminal offense?" as follows: "Yes, DWI, 3-96 Charges Dropped, Onslow County Court House, Dismissed." 

5. Petitioner was issued a probationary detention officer's certification on August 29. 1997. 

6. That 12N.C.A.C. lOB .0204(c)( 1 ) and (2) provides: 

(c) The Commission may revoke, suspend, or deny the certification of a justice officer when the 

Commission finds that the applicant for certification or the certified officer: 

( 1 ) has knowingly made a material misrepresentation of any information 
required for certification or accreditation from the Commission or the North 
Carolina Criminal Justice Education and Training Standards Commission; 
or 

(2) has knowingly and designedly by any means of false pretense, deception, 
defraudation, misrepresentation or cheating whatsoever, obtained or 
attempted to obtain credit, training or certification from the Commission or 
the North Carolina Criminal Justice Education and Training Standards 
Commission. 

7. In March 1998. the Respondent received the results of the fingerprint criminal history check of the Petitioner 
from the North Carolina State Bureau of Investigation. This check included a pointer to Mecklenburg County showing previous 
charges against the Petitioner. The Respondent sent requests to both the Criminal Courts Department in Mecklenburg County and 
the Mecklenburg County Court Services Department for any available criminal history information on Petitioner. 

8. The Petitioner and Respondent agree and stipulate that all Exhibits offered by Petitioner and that all Exhibits 
offered Respondent are genuine and if relevant and material may be received in evidence without further identification or proof. 

Based upon the foregoing stipulations, and by the greater weight of the admissible evidence, the undersigned makes the 
following: 

FINDINGS OF FACT 

1 . Petitioner. Keith Allen Norris. is a citizen and resident of Onslow County. North Carolina. The Petitioner is 
presently employed with the Onslow County Sheriff's Department as a Deputy. The Petitioner is presently married and has two 
children. Petitioner was born on April 7. 1967. At the date of the hearing, the Petitioner was 32 years old. 

2. The Petitioner was taken into custody by the Mecklenburg County Sheriff's Deputy. Jimmy Rushing (off-duty), 
on August 3, 1991. while a patron at a local nightclub by the name of Plum Crazy. The basis for this action was Petitioner's 
refusal to leave the parking lot premises while intoxicated after being told to leave. The Petitioner was taken to the Mecklenburg 
County Jail by R.A. Gidley (no longer on the force) of the Mecklenburg County Police Department. Through subsequently 
produced records. Mecklenburg County records indicate Petitioner was charged with the offenses of Resist/Obstruct Public 
Officer and Second Degree Trespass. However, on the same day. upon being taken before the magistrate, no probable cause was 
found. The Petitioner was photographed and fingerprinted in the Mecklenburg County Jail. At the time of the Petitioner's arrest, 
he was very intoxicated. For this reason, the Petitioner had little recollection regarding the facts and circumstances surrounding 
his arrest and incarceration. 

3. On August 2 and 3, 1991, Petitioner had consumed sufficient amounts of alcoholic beverages in the form of beer 
and Petitioner was not in control of his faculties. 

4. During all subsequent employment and follow-up interviews with Sheriff Brown, the Petitioner fully disclosed 
all of the details within his memory surrounding the incident which led to his incarceration in the Mecklenburg County Jail on 
August 3. 1991. 

5. Petitioner has little or no recollectiim of the events the evening of August 2. 1991 and morning of August 3. 
1991, between his arrival at the club establishment and waking up the next morning in the Mecklenburg County Jail. Petitioner 
could not remember that he was on premises at this establishment; could not remember the time that he arrived and did not 
remember any of the substantial details of his time on the premises. Petitioner does not remember being transported to the 
Mecklenburc Countv Jail. 



352 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



6. Petitioner is not normally accustomed to drinking alcoholic beverages. Petitioner cannot recall how much he 
consumed on the evening in question. Petitioner, in describing his level of intoxication, testified that he was too intoxicated to 
take care of himself. Petitioner was, furthermore, too intoxicated to remember the events of that evening or later that night and 
morning. 

7. Petitioner was incapable of driving that evening because of intoxication. Petitioner's friend and designated 
driver on that occasion was Allen Gaskins, who was not a witness. 

8. Petitioner does not recall being asked to leave the club on August 3, 1999. 

9. Jimmy Thomas Rushing. Jr. presently serves as Captain in the Mecklenburg County Fire Department. Mr. 
Rushing was previously employed by the Mecklenburg County Sheriffs Department. On August 3, 1991, Mr. Rushing 
encountered and apprehended the Petitioner. "Rushing, J. P. SID 3 1 8" was Deputy Rushing" s identification number. 

10. On August 3, 1991, Deputy Rushing was working as an off-duty security officer and was responsible for 
maintaining order outside of the nightclub. As an off-duty security officer. Deputy Rushing could not go inside the establishment 
because there was a policy prohibiting deputies from being inside the establishment where alcohol was being served, unless there 
was a major disruption which would require the assistance of the off-duty deputy. 

11. On August 3, 1991, Deputy Rushing was dressed in uniform, carrying a sidearm and a badge. Petitioner was 
brought outside by the bouncers of the nightclub. Deputy Rushing asked the Petitioner to leave. Deputy Rushing described the 
Petitioner on the night in question as "intoxicated". Petitioner, according to Deputy Rushing, could walk, talk, and was coherent 
but had slurred speech and was very aggressive. According to the testimony of Deputy Rushing, Petitioner was cursing and 
abusive. The incident between Deputy Rushing and Petitioner took place during a timeframe of approximately 20 minutes. 
Deputy Rushing asked Petitioner to leave the property. Petitioner left for awhile but returned. Petitioner was insistent that he go 
back inside the nightclub. When Deputy Rushing was about to aixest Petitioner. Deputy Rushing stated: "We had a difference of 
opinion as to whether or not he was gonna be arrested." Deputy Rushing "took Petitioner to the ground" and Petitioner was 
handcuffed. Deputy Rushing called for a transporting officer to take Petitioner to the Mecklenburg County Jail. Deputy Rushing 
told the Mecklenburg Police Department Officer what occurred and from this infomiation, the transporting officer provided the 
information found on the arrest record to the Magistrate at the Mecklenburg County Jail. 

12. Deputy Rushing provided information to R.A. Gidley of the Mecklenburg County Police Department as to the 
circumstances surrounding Petitioner's apprehension and transportation to the Mecklenburg County Jail. Deputy Rushing never 
appeared before a Magistrate nor did he provide an affidavit as to what occurred. Deputy Rushing only provided verbal 
information to Officer Gidley so that Officer Gidley could record this information in his arrest report. Respondent's Exhibit #13 
with its computerized information presumptively reflects information provided by Officer Gidley to the Magistrate. 

13. Petitioner was intoxicated to the degree that he could not immediately be fingerprinted and taken before a 
Magistrate. Petitioner was not taken before the Magistrate until the following morning after being incarcerated in the 
Mecklenburg County Jail for a period of time in order for him to sober up from the effects of the alcohol that he consumed the 
night before. No probable cause was found by the Magistrate. 

14. Detainees may be delayed before being presented to the Magistrate because of disruptive behavior in addition to 
intoxication. 

15. On the next day, Petitioner woke up and he was incarcerated in a space with other individuals. 

16. Petitioner was not aware, if in fact he had been, thai he had been charged with Trespassing and Resisting an 
Officer. 

17. Petitioner was not handed any papers or documents indicating an arrest or charge. 

18. Petitioner was told by the magistrate on August 3, 1991, that there was no cause for him to remain in custody 
and that he was free to go and that there were no charges. He was not given a warrant, a citation or a criminal summons or any 
other document indicating that he was to appear in court. Petitioner was not given a release order. 

19. Petitioner recalls being fingerprinted but did not know that he had been aiTCsted or charged. Petitioner does not 



14:4 NORTH CAROLINA REGISTER August 16, 1999 353 



CONTESTED CASE DECISIONS 



recall any conversation with police officers by whom he was transported that evening. Petitioner did not recall having his personal 
property taken from him by officials of the Mecklenburg County Police Department. 

20. When Petitioner was released he had to call his friend whom he had been with the night before. His friend 
informed him that he had not known what had happened to him. "He had said that all of a sudden that he was gone and that he did 
not know where he was." 

21. Any failure to disclose the facts and circumstances surrounding the August 3. 1991 incident, occurred as the 
result of the Petitioner's misunderstanding of the arrest process in Mecklenburg County, on August 3. 1991 and was based on 
advice given to him by Sheriff Brown as to his understanding of the drunk assist law. There was no intent by the Petitioner to 
mislead any person or any agency when he completed the personal history questionnaires on July 14. 1992 and on June 24. 1997. 

22. Petitioner, prior to 1991, had not been photographed or fingerprinted while in the custody of the police. 

23. Petitioner was embarrassed by his incarceration and the events surrounding the incarceration. 

24. Deputy Rushing explained that Mecklenburg County does not avail itself of the "drunk arrest" statute (G.S. 
122c0303) as a matter of policy nor was Deputy rushing aware of this statute in 1991 . 

25. Deputy Rushing recounted the facts of this occasion approximately seven years later and he had no notes of his 
encounter with Petitioner. Deputy Rushing could not recall the type of clothing that the Petitioner was wearing on the night in 
question. Deputy Rushing could only recall parts of what occurred seven years ago. Deputy Rushing worked only eight or nine 
times at this particular nightclub but only made two arrests. 

26. Petitioner has completed 700 hour Basic Law Enforcement Training Course. 

27. In 1992, the Petitioner approached Onslow County Sheriff Ed Brown and inquired about the possibilities of 
employment with the Sheriff's Department. At that time. Sheriff Brown asked the Petitioner: "Have you ever been in trouble 
before?" The Petitioner informed the Sheriff that he had gone to jail in Charlotte, North Carolina, in 1991 . 

28. Sheriff Brown has known the Petitioner practically his entire life. They resided in the same community and part 
of the reason for the Petitioner wanting to be a part of the Sheriffs Department was because of his admiration of Sheriff Brown. 

29. Sheriff Brown also has known Petitioner's mother and father. Sheriff Brown's family and Petitioner's family 
reside in the same community in Onslow County. 

30. In Petitioner's conversation with Sheriff Brown prior to completing Respondent's Personal History 
questionnaire. Respondent's Exhibit #7, and in response to the Sheriff's question about his prior record, the Petitioner disclosed to 
Sheriff Brown what information he knew about the incident on August 3. 1991. Sheriff Brown inquired of Petitioner at least 
twice as to whether or not he had "been in trouble." Petitioner responded to Sheriff Brown that he "had been put in jail in 
Charlotte." Sheriff Brown asked Petitioner if he knew what he had been put in jail for. Petitioner responded that he did not know. 
Sheriff Brown then asked, "What did they do in court?" Petitioner replied: "I didn't have to go to court." Sheriff Brown inquired: 
"Did you have to pay a fine?" Petitioner responded: "No, I didn't have to pay a fine." Sheriff Brown then inquired as to whether 
Petitioner had to post a bond. Petitioner responded that he did not have to post bond. In addition. Petitioner had no 
documentation of his incarceration. Petitioner relayed to Sheriff Brown that the next morning they let him out and that he could 
go and would not have to come back. Sheriff Brown, in Petitioner's presence, concluded that this was typical of a "drunk assist". 
Petitioner informed Sheriff Brown that he was intoxicated at the time and that he had difficulty recalling and remembering the 
events of the evening. 

31. Petitioner's Exhibit #2 contains General Statute 122C-303 and it is quoted in part below: 

In addition to the actions authorized by G.S. 122C-30l(a), an officer may assist an individual found intoxicated 
in a public place by directing or transporting that individual to a city of county jail. ...The intoxicated individual 
may be detained at the jail only until he becomes sober or a maximum of 24 hours and may be released at any 
time to a relative or other individual willing to be responsible for his care. 

32. The Honorable Ed Brown has served as the Sheriff of Onslow County for nine years. Sheriff Brown has been in 
law enforcement for over twenty-five (25) years, employed by both the Jackson\ ille Police Department as Assistant Chief and the 



354 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



Onslow County Sheriff's Department. As a law enforcement officer with these agencies, Sheriff Brown has on numerous 
occasions taken persons who were intoxicated to jail under what the Sheriff called the "drunk assist"" law (N.C.G.S. Sec. 122C- 
303) and that these persons so detained remained in jail until they sobered up at which time they are released. Based upon his 25 
years of experience. Sheriff Brown understood that under this statute, when a person was taken into custody as a '"drunk assist", 
there was no arrest and no criminal charges. 

33. Sheriff Brown understood "drunk assist" to mean that in 1977 (or thereabouts) society took a different view of 
'"drunks" and that it was no longer a crime to be publicly intoxicated and that alcoholism was a disease. The "drunk assist" was a 
response to the public inebriate. Prior to this time, public drunks were arrested and charged with a crime. After the "drunk assist" 
law, it was no longer a crime to be public drunk/public intoxicated. Sheriff Brown received training from the District Attorney's 
Office on the application of this new law. Sheriff Brown believed that 

he had no alternative but to obey and enforce the dictates of the new law. Under this law. Sheriff Brown's habit in the past, 
particularly when he was employed by the Jacksonville Police Department, was to try to find a suitable custodian for the public 
inebriate and if no custodian was available, then it was his responsibility to transport the individual to a place of incarceration or 
jail. The individual was to remain in the jail until they become sober and thereafter released. The individual so detained is not 
charged with a crime and there is no record of the arrest. In response to the disclosures made by the Petitioner, Sheriff Brown 
concluded that the Petitioner's detention in Mecklenburg County had been a drunk assist pursuant to G.S. I22C-303. 

34. After hearing the Petitioner's explanation about what happened in Mecklenburg County. Sheriff Brown, through 
different agents in the Onslow County Sheriff s Department, made specific inquiry of personnel in the Mecklenburg County 
Office of the Clerk of Court and determined that no record existed in Mecklenburg County showing that Petitioner had ever been 
arrested or charged with an offense in Mecklenburg County. Based thereon. Sheriff Brown told the Petitioner that he was not 
arrested in Mecklenburg County but was confined until he sobered up under the drunk assist law and that therefore he had no 
arrest record. Based upon the initial conversation between Sheriff Brown and Petitioner. Sheriff Brown or his agent's employees, 
tried to secure from Mecklenburg County and other agencies any record of Petitioner's incarceration. Sheriff Brown attempted by 
the following means to secure records: 

a. by telephone call to the Office of the Clerk of Court of Mecklenburg County; 

b. a drivers license check: 

c. an NCIC criminal check. 

Sheriff Brown, based upon the telephone call initiated to the Clerk of Court, found no record of this incident. All of the 
avenues utilized by the Onslow County Sheriff's Department to determine more information about the incarceration revealed no 
evidence of an arrest or charge. 

35. After Sheriff Brown's conversation with the Petitioner and as a result of his check of the records in 
Mecklenburg County. Sheriff Brown further concluded that Petitioner had been incarcerated under the "drunk assist" statutes of 
the State of North Carolma. 

36. Sheriff Brown further informed the Petitioner that there was no record of his incarceration and that there was no 
record of his incarceration because his detention had been a "drunk assist"". 

37. As far as Sheriff Brown could determine. Petitioner had not been arrested and charged with a crime. 

38. Sheriff Brown also submitted Petitioner" s fingerprints for a fingerprint search and photograph. The SBI did not 
locate any information about an arrest record for the Petitioner in Mecklenburg County. 

39. Had Sheriff Brown discovered a criminal charge, the process would have been stopped by him in his office until 
the information about the charge was satisfied. 

40. Sheriff Brown believed that the Petitioner informed him of all that he knew about the situation and 
circumstances of the events of August 3. 1991. in Mecklenburg County. 

41. At the time that Petitioner initially applied for a certification, the Onslow County Sheriffs Department"s 
procedure was to combine the Respondent"s Form F3 (Respondent"s Exhibit #7). and the Onslow County"s application torm in 
order to process a criminal records check by the Onslow County Sheriff"s Department. 

42. The criminal history check is accompanied by a drivers license check. If those checks come back clear and the 



14:4 NORTH CAROLINA REGISTER August 16, 1999 355 



CONTESTED CASE DECISIONS 



Onslow County investigators" background check comes up clear, nothing would have been disclosed adverse to the Petitioner's 
application at that time. 

43. Sheriff Brown has never known the Petitioner to tell him anything that was untrue or false. Petitioner has never 
attempted to deceive or mislead Sheriff Brown as to the details or events surrounding the incident in Mecklenburg County in 
August of 1991. 

44. Petitioner fully disclosed to Sheriff Brown the circumstances of the incident in Mecklenburg County insofar as 
he could remember and the circumstances surrounding a subsequent "Driving While Impaired"" arrest and charge in Onslow 
County. 

45. Petitioner disclosed to Sheriff Brown that he had been asked to leave a place but that Sheriff Brown recalled that 
this place was a swimming pool. Sheriff Brown could recall only that Petitioner could not remember anything other than being 
removed from a premise and waking up the next day in jail. Sheriff Brown focuses on past criminal information from an applicant 
generally based upon what happens before the Magistrate in terms of posting bond and the payment of a fine. 

46. Petitioner told Sheriff Brown that he did not have to post bond; he did not have to go to court; he did not have to 
pay a fine and he was released from the jail. The Sheriff believed that Petitioner was not charged. Sheriff Brown was not aware 
that the Petitioner had been fingerprinted or photographed, but notwithstanding that Sheriff Brown did not know that the Petitioner 
had been photographed or fingerprmted, this would not have changed his conclusion that Petitioner had been "drunk assisted" 
because anyone entering his jail may be fingerprinted and photographed under a 

"drunk assist" and that Sheriff Brown intends to photograph and fingerprint everyone coming to the 

Onslow County Jail. Information on "drunk arrests" was not maintained in Onslow County until Sheriff Brown became the 

Sheriff. The type of information now recorded on "drunk assists'" is contained by way of example on Petitioner" s Exhibit #4. 

47. According to Sheriff Brown, an arrest requires an indication of what an individual is charged with; a bond being 
posted; an opportunity to go before a judicial official with a disposition. Since Petitioner did not have documents or other 
substantiating information. Sheriff Brown concluded that the Petitioner, in the Mecklenburg County incident, was placed in 
custody for intoxication and when he was sober, he was released. 

48. The "drunk assist'" law is utilized, according to Sheriff Brown, even when other activities of a criminal nature 
are involved if the person is so intoxicated that he cannot appreciate what he has done, much the same as an insane person. 
According to Sheriff Brown, if a person is placed in custody for intoxication and later resists or obstructs an officer, then Sheriff 
Brown does not arrest and charge this individual for the conduct because of the degree of intoxication. This person is taken into 
custody, detained until he becomes sober, and thereafter released. According to Sheriff Brown, if a person is capable of being on 
his feet and starting a fight and happens to be intoxicated, he can be arrested in the discretion of the officer. 

49. The determination between the two hypotheticals turns on the degree of intoxication. If the individual has no 
control over the intoxication, then what occurs thereafter arises from a condition over which the individual has no control and that 
the alcohol excuses, in some instances, the conduct. 

50. Major Christine Koontz was involved in assisting Petitioner in the application process in 1992. Major Koontz is 
now retired from the Onslow County Sheriff's Department. Major Tammy Hinson succeeded to Major Koontz's position after 
retirement. 

51. Major Hinson had several conversations with the Petitioner regarding the incidents and the necessity for 
verifying this information by records. At no time did the Petitioner deceive or mislead Major Hinson. 

52. In 1992. the Petitioner was not aware of the existence of the function of the Sheriffs" Education and Training 
Standards Commission. Respondent. 

53. Petitioner believed that the Respondent" s Exhibit #7 was being completed for the benefit oi Sheriff Brown. 
Petitioner assumed that when informing Sheriff Brown about the incident in Mecklenburg County, that he was actually informing 
the Respondent as well or that the information that was supplied to Sheriff Brown would be known to all those who sat in 
determination of his employment application. But. he did not know at the time specifically that the Respondent reviewed this 
Personal History Statement. 

54. As part of the application process to the Onslow County Sheriffs Department. Petitioner was given a Personal 



356 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



History Statement (Form F-3) prepared by the Respondent which asked various questions about the Petitioner's personal history. 
Question 47 of this form asks "Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal 
offense?" The Petitioner failed to answer this question, through an oversight, due to the fact that Sheriff Brown was at the time 
searching the Mecklenburg County records to determine whether an arrest record existed for the Petitioner. As a result of the 
Sheriff's assurances to the Petitioner that he had not been arrested, the Petitioner failed to acknowledge on the personal history 
statement an arrest in Mecklenburg County in 1991. Petitioner was not certain as to whether or not he had been arrested and 
charged by the Mecklenburg County Police Department on or about August 3. 1991 . 

55. Respondent's employees who reviewed the application did not object to the lack of an answer \.o question #47. 
Paragraph 47 required a "yes" or "no" answer and then there are spaces for further information. 

56. A the lime of the arrest on August 3, 1991, Petitioner had no law enforcement training and this was his first 
encounter with law enforcement officers. 

57. Petitioner, based upon his law enforcement experience, is aware that in Onslow County that officers making a 
"drunk assist" do not fingerprint those who are taken into custody. 

58. Respondent's Personal History Form (F-3) solicits information on both the arrest and charges. TTie "blanks" 
below paragraph 47 do not pro\ ide a space to place an'est information but do provide space to list the offense charged. 

59. Petitioner did not answer question #47 on Respondent's Exhibit #7 because he had omitted it awaiting a 
response from Sheriff Brown. Petitioner relied upon the expertise of the Sheriff of Onslow County to determine whether there 
was an arrest record for Petitioner in Mecklenburg County. 

60. Sheriff Brown, in searching for the correct answer to question #47 on Respondent's Exhibit #7, has tried to 
determine the nature of the offense charged and its disposition, beginning with an initial inquiry in 1992 through December 18, 
1998. and thereafter. 

61. Petitioner was hired by Sheriff Brown as a Detention Officer based upon this application and that Respondent 
had issued certification. 

62. Petitioner left the employment of the Onslow County Sheriff's Department in 1993, to secure other employment 
as his compensation with the Sherifl's Department was not sufficient. He began work as a surveyor in order to earn more 
compensation. In 1997. the Petitioner again approached Sheriff Brown about the possibilities of returning to employment with the 
Onslow County Sheriff's Department. At that time, the Petitioner had an outstanding charge pending against him in Onslow 
County. North Carolina for the offense of Driving While Impaired. The Petitioner disclosed this pending charge to Sheriff Brown 
and was told by the Sheriff that he need not apply for employment until this charge was resolved. 

63. In April 1996. the charge of Dri\'ing While Impaired was dismissed by the District Attorney's Office and 
thereafter the Petitioner applied for employment with the Onslow County Sheriff's Department. As a part of the employment 
application, the Defendant once again completed A Personal History Statement and in response to question number 47: "Have 
you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?" The Petitioner responded: 
"yes": offense charged: DWI; law enforcement agency: Onslow County Courthouse; 

date: 4/96 charges dropped; disposition: dismissed. The Petitioner did not disclose anything regarding the Charlotte incident 
because he assumed that the matter had been resolved in his previous employment application and as a result of his earlier 
conversation with Sheriff Brown. Petitioner concluded then that he had not been arrested in Charlotte, in 1991. TTiis belief was 
based upon the fact that he had fully disclosed the incident surrounding the circumstances of his custody and that the personnel in 
the Onslow County Sheriffs Department who are responsible for making criminal records checks ad\'ised him that a disclosure 
was not required for lack of a record. The issue was moot. 

64. Petitioner applied for certification as a Detention Officer to the Respondent on July 14. 1997 (Respondent's 
Exhibit #4). Petitioner applied for certification as a Deputy Sheriff to the Respondent on July 18. 1998 (Respondent's Exhibit #5). 

65. During the reapplication process, the Petitioner disclosed to Sheriff Brown the circumstances surrounding the 
DWI arrest and charge under the same or similar circumstances as he had disclosed the incident in Mecklenburg Couni\. Sheriff 
Brown conducted a similar check in Onslow Count\' and verified the information of the arrest and that the DWI charsie had been 



14:4 NORTH CAROLINA REGISTER August 16, 1999 357 



CONTESTED CASE DECISIONS 



dismissed against tiie Petitioner. This verification was established by the records in the Onslow County Clerk of Court's Office. 

66. As part of Petitioner's application in 1997, he submitted fingerprints. Subsequent to that submission, the State 
Bureau of Investigation informed Respondent that: 

On November 21. 1996, the SBI added 135.272 criminal fingerprint cards to the SBI AFIS in Raleigh. These 
fingerprint cards are misdemeanor arrests from Mecklenburg County that were not originally submitted to the 
SBI. The attached response reflects an identification against one of these historical fingerprint cards. 

67. Petitioner's Exhibit #1 accompanied Respondent's Exhibit #17. In Petitioner's Exhibit #1, Major Hinson, as the 
Onslow County Sheriff's Department employee in charge of records checks, advised Petitioner not to list an offense unless it 
could be verified, stating the following: "We did not and do not recommend that Mr. Norris put any offenses on his Personal 
History Statement unless we can verify that he was actually ever charged." 

68. Sheriff Brown's contact with the Mecklenburg County Clerk of Court was his first avenue of search for 
information as to an arrest record because in Onslow County the criminal records check are kept by the Onslow County Clerk of 
Court. Sheriff Brown directs records check information made to his office to the Onslow County Clerk of Court. 

69. The routine procedure of the Onslow County Sheriff's Department requesting a records check for an applicant 
for employment and the procedure followed in Petitioner's application for employment was: ( 1 ) submit the name, date of birth 
and social security number for a criminal history check; (2) submit identifying information for a drivers license check; and (3) 
check with an out-of-county Clerk of Court to verify specific information. After these attempts were made on Petitioner's behalf, 
no records were discovered or disclosed indicating any arrests or charges. 

70. There are approximately 25 to 30 separate forms and documents that have to be submitted by the Onslow County 
Sheriffs Department in the certification process for employment. 

71 . In Respondent's Exhibits #2, 4. and #5, applicants for certification are informed of what records and what forms 
must be completed. Among the records and forms that must be submitted is a category entitled "Records Check - Clerks Office - 
Last (6) Months." Petitioner had applied for Detention Officer Cerlilicalion (jailer) in 1992 (Respondent's Exhibit #2). 

72. Ms. Julia A. Loman, who is presently serving as the Director of the Respondent, and who was previously served 
as the Deputy Director, has been an employee of the Respondent for approximately 10 years. At all times relevant to this 
contested case, Ms. Loman had knowledge of or supervisory authority over the applications and records of those seeking 
certification. 

73. In reviewing Petitioner's Exhibit #7 with question #47 as blank, the Respondent through one of its agents or 
officials, indicated that there was no criminal history based upon the Petitioner's answer to question #47. Ms. Loman. had she 
been reviewing the application, would not have made this conclusion but would have returned it to the Petitioner. Ms. Loman 
would ha\e preferred that the evaluator return the application to the Petitioner since question #47 was unmarked. 

74. Ms. Loman indicated and stated that there was nothing false on Respondent's Exhibit #7 as represented by the 
Petitioner. 

75. There has not been a change in policy between 1992 and 1997 regarding an incomplete application. However, 
there was no written or verbal policy which would instruct an evaluator of the application as to hov\ to treat an incomplete answer. 
particularly an incomplete answer to question #47. Ms. Loman, in the future will initiate a new policy that if any question is left 
blank, that it will be returned to the applicant. 

76. On August 4, 1992, Petitioner was issued a Probationary Jailers Certification by Respondent (Respondent's 
Exhibit #3). Contained in Respondent's Exhibit #3 is the statement: "Upon due consideration, the commission finds that proper 
application for certification has been submitted to it on behalf of the named above." (Respondent's Exhibit #3) 

77. According to Ms. Loman's testimony, the Respondent had no further inquiry or questions concerning the 
Petitioner's disclosure of the DWI arrest. 

78. On July 25, 1997, Petitioner, for the second time, was issued the Probationary Detention Officer Certification. 
Respondent's Exhibit #9 also contains the statement: "Upon due consideration, the commission finds that proper application for 

358 NORTH CAROLINA REGISTER August 16. 1999 14:4 



CONTESTED CASE DECISIONS 



certification has been submitted to it on behalf of the abo\e named." 

79. On November 21, 1996. the State Bureau of Investigation added 135.272 criminal fingerprint cards to the SBI 
AFIS in Raleigh, North Carolina. TTiese fingerprint cards were for misdemeanor arrests from Mecklenburg County that were not 
originally submitted to the SBI. Prior to November 21, 1996. the SBI had no arrest record for the Petitioner from Mecklenburg 
County. This submission provided Respondent for the first time with Petitioner's record in Mecklenburg County. 

80. In 1997. Ms. Loman received information from the SBI AFIS that the fingerprint cards which were submitted to 
the SBI on November 21, 1996 showed an arrest for the Petitioner, Keith Allen Norris. 

81. According to Ms. Loman, Mecklenburg County is confusing lo requesting agencies as far as the different 
Mecklenburg County agencies that retain criminal records. These two agencies are in addition to the Mecklenburg County Clerk 
of Court. Ms. Loman further testified that the records maintained in Mecklenburg County by these two agencies in addition to the 
Clerks Office, was something that she was not originally aware of but had to learn. 

82. There was no file number or case number attached to Petitioner or his arrest record in Mecklenburg County. 

83. Onslow County representatives submitted Petitioner's fingerprints for a Criminal Background Check. Stanley 
Lewis, Special Agent In Charge of the SBI's Identification Section, authored both Respondent's Exhibits #10 and #17. AFIS is an 
abbreviation for Automated Fingerprint Identification System. 

84. When Respondent's Exhibit #17 was submitted to Mr. Lewis and his staff, the third part of Respondent's 
Exhibit #17 indicates "NO RECORD." However, SBI is crossed through but FBI is remaining. The SBI AFIS would not, prior to 
November 21, 1996, have in its inventory the records lo support this check. Therefore, the only certification that could be made 
for a Mecklenburg County misdemeanor anest is that of an FBI check and that there must be a referral of inquiries from an SBI 
check to officials in Mecklenburg County for inquiry concerning a misdemeanor arrest. The requested inquiry is sent to the FBI 
only and Respondent's Exhibit #1 7 indicated from the FBI inventory of fingerprint files that Petitioner had no arrest record. The 
"Local ID" on the fingerprint attachment to Respondent's Exhibit #17 is 157574. 

85. In 1992 Second Degree Trespass would be characterized as a Class A misdemeanor and is not sufficient by itself 
to withhold certification. In 1992, Resist. Obstruct and Delay is a Class B misdemeanor. In 1992 the application it would have 
been dated within five years of Petitioner's hire and would have potentially triggered an investigation into the possible commission 
of that offense. However, in 1997, the Resist/Obstruct offense would have been older than five years. In 1992, the Respondent 
could have investigated the possible commission of that offense notwithstanding that there was never a charge or an adjudication 
by a court of that offense and could have resulted in the possible withholding of certification. In 1997. the alleged offense would 
have been over five years old. 

86. By way of correspondence from the Respondent dated January 26, 1998, addressed to the Criminal Courts 
Department of Mecklenburg County (Respondent's Exhibit #12) and by correspondence dated March 5, 1998 from Respondent to 
the Criminal Courts Department of Charlotte, North Carolina (Respondent's Exhibit #1 1 ). Respondent asked for further 
information on the arrest record of Keith Allen Norris. The Respondent specifically requested "certified copies of the charge and 
warrant, disposition, any sentencing documents, and any other relevant documents." 

Respondent's Exhibit #1 I was returned by the Criminal Courts Department to the Respondent with the notation "No Record found 
in MECKLENBURG CTY. 1 " 

87. Thereafter Ms. Loman contacted Michael A. Sloop. Court Services Analyst of the Mecklenburg County Court 
Services Department and learned that there was an arrest record for the Petitioner, Keith Allen Norris, for the offenses of Second 
Degree Trespass and Resist/Obstruct a Public Officer which occurred on August 3, 1991 and that the arrest record showed that no 
probable cause was found by the magistrate lor both of these charges. Michael A. Sloop. Court Services Analyst, responded in 
writing on March 13. 1998 (Respondent's Exhibit #13), to the Respondent indicating the following: 

Research of the above Mecklenburg County LID Number reveals that Keith Allen Norris. W/M. DOB: 
04/07/67, was arrested in Mecklenburg County on 3 August 1991 for the following Charges: (Respondent's 
Exhibit #13) The Exhibit indicates that there were two charges. Charge I was Trespass-Second Degree. 
Charge 2 was Resist/Obstruct Public Officer (MISD). The Exhibit further indicates that there was "No Probable 
Cause" and there was "No testimony on affidaxit" and Elements are not present." 



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CONTESTED CASE DECISIONS 



88. Mr. Sloop did the search pursuant to Respondent's request where Respondent inquired about Mecklenburg 
County LID #157574. Court Services of Mecklenburg County is the County agency where most of the arrest records are 
contained. The Criminal Courts Department is actually the Criminal Division of the Clerk of Superior Court of Mecklenburg 
County. 

89. According to Mr. Sloop, it is possible for the court services to have a criminal record where the Criminal 
Division of the Mecklenburg County Clerk of Court would not. 

90. Mr. Sloop prepared Respondent's Exhibit #18 and compiled the attachment thereto. 

91. Respondent's Exhibit #18 attachment shows, according to Mr. Sloop. Petitioner's fingerprints were not 
immediately taken upon entry into the Mecklenburg County Courthouse, but he was fingerprinted at a later time because of the 
Petitioner's intoxication. Petitioner's intoxication caused him to have to be set aside upon his entry into the Mecklenburg County 
Jail because of the need to cooperate with the fingerprinting officer. 

92. On Respondent's Exhibit #18 attachment 4. the Magistrate did not find probable cause for the trespass "no 
testimony on AFA." As to attachment 5. the Magistrate did not find probable cause on resist/obstruct public officer because "the 
elements are not present." 

93. The Mecklenburg County Court Services Department is not a well known agency for the average citizen to 
contact to determine the existence of any criminal record. Ms. Loman knows of this department because of her experience 
working with Respondent. 

94. After learning about the arrest record for the Petitioner. Ms. Loman contacted the Petitioner on March 17. 1998 
and informed him that she had received a record showing a previous arrest in Mecklenburg County. North Carolina on August 3, 
1991 and asked the Petitioner to explain why he failed to list these charges in response to question 47 of the personal history 
statement and to explain the circumstances surrounding the arrest in this case (Respondent's Exhibit Number 14). Petitioner was 
specifically asked: 

1) Why you failed to list these charges in response to question #47 on your Personal History Statement? 

2) Whether you discussed or otherwise divulged this arrest to anyone at the Onslow County Sheriff's 
Office during your application process, and if so, to whom and when? 

3) What were the circumstances that arose that caused you to be arrested? 

4) Are there any other arrests or charges which have not been listed? 

95. On March 29, 1998, Petitioner, in a letter that he wrote to Respondent (Respondent's Exhibit #15) in response to 
Respondent's letter to him of March 17, wrote the following: 

My family and I were living in Mecklenburg County at the time of my arrest. Some friends that I had not seen in 
quite awhile invited me to join them at a nightclub. While at the club, I felt that I had drank too much to drive 
and lost track of my friends, one of whom had my car keys (our designated driver). While trying to locate the 
people I came with, the club management asked me to leave and I was escorted outside. I tried to explain that I 
wished to wait for the others in my party, but the club management had me picked up and taken to jail. No 
charges were filed against me. however, and I was released that same evening. 

96. In the above statement Petitioner stated that he arrived at this club with friends. In his testimony at the hearing. 
Petitioner stated that he arrived with a single friend. His reference in this letter twice referred to "friends" in the plural. Petitioner 
stated at the hearing that he had no recollection of the events. He reconciled his testimony with the letter (Respondent's Exhibit 
#15) by saying that this was his attempt to reconstruct what must have happened on that evening. Petitioner then had the benefit 
of what other people had indicated had occurred on the evening of March 29. He still had no independent recollection of these 
events. Petitioner made certain assumptions when he made his explanation to the Respondent in Respondent's Exhibit #15. 

97. Petitioner's current knowledge of the law intbrms him that without probable cause, police authorities cannot 
retain a person in jail. 

98. Petitioner's understanding of a drunk arrest is that individuals who are intoxicated are detained, held in jail, and 
thereafter, released without arrest or charges being lodged against them as would be evidenced by court papers. 



360 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



99. The Petitioner notified Sheriff Brown and Major Hinson about receipt of this letter from Ms. Loman. The 
Onslow County Sheriffs Department attempted to obtain records regarding the Defendant's 1991 arrest in Mecklenburg 
County by contacting both the Criminal Courts Department (Clerk of Court) 700 East Fourth Street. Suite 4401, 
Charlotte. NC and the Mecklenburg County Court Services Department. 801 East Fourth Street. Charlotte. NC. Both of 
these agencies indicated to Major Hinson that no arrest record existed for the Petitioner in Mecklenburg County 
(Petitioner's Exhibit #3 and #6). 

100. Officials of the Onslow County Sheriff's Department submitted Respondent's Exhibit #1 7 to both the Criminal 
Courts Department and the Mecklenburg County Court Services Department and the following notation is made thereon: ■■*! have 
- called both of these agencies + they could not find any record of Mr. Norris. Thanks, Tammy." Submitted with #17 was a set of 
Petitioner's fingerprints. Also attached is a statement as follows from the Federal Bureau of Investigation. United States 
Department of Justice, Washington, D.C. also stamped 27"^ and further stamped "NO RECORD FBI IDENTIHCATION 
SECTION", and initialed. 

101. Ms. Loman indicated that there was a dual reason for the Respondent requesting information as to disclosure as 
contained in numerical paragraph #2 of Respondent's Exhibit #14 where it is asked ""Whether you discussed or otherwise divulged 
this arrest to anyone at the Onslow County Sheriff's Office during your application process, and if so, to whom and when?" The 
dual purpose of this question, according to Ms. Loman, is to determine whether any other certified officer suggested to the 
Petitioner not to disclose the information as well as determining whether there was disclosure to the Onslow County Sheriff's 
Office as to the existence of the circumstances. 

102. Ms. Loman. in her testimony, indicated that for those applicants who have not received certification, during the 
process applications are as a general course, returned to applicants when the Personal History Statement in response to question 
#47 indicates something different from the Respondent's information as to arrest records based upon their checks. However, if 
certification has already been issued and subsequent information becomes available, the circumstances are submitted to the 
Probable Cause Committee without the applicant being permitted the opportunity to correct the record. 

103. Mr. Sloop received a request from Major Hinson requesting a search for Keith Norris. According to Mr. Sloop, 
his agency was having computer problems and could not find any arrest record or information for the Petitioner. According to Mr. 
Sloop, Major Hinson did not supply Mr. Sloop with the LID number. This request by Major Hinson was made by telephone. Mr. 
Sloop responded to Major Hinson by way of fax. Petitioner's Exhibit #3. On Petitioner's Exhibit #3, Mr. Sloop says the 
following: ""I couldn't find anything on a Keith Morris or Keith Norris." This response was received by Major Hinson on 
12/18/98 (Petitioner's Exhibit #3). This request and response by Mr. Sloop was subsequent to the earlier request with the specific 
information supplied to the Respondent. Mr. Sloop forgot about the earlier inquiry from the Respondent and was not able to 
supply the information he supplied to Respondent to Major Hinson. 

104. The records of the Mecklenburg County Criminal Division do not have criminal arrest information, but only the 
cases where probable cause is determined by a Magistrate. The Clerk of Court does not notify inquirers that arrest records without 
probable cause, must come from the Mecklenburg County Court Services. Generally, the public does not know how to secure 
arrest records in Mecklenburg County unless they make a direct inquiry of the Mecklenburg County Court Services. The 
Mecklenburg County Courthouse Clerk's Office records are not based upon fingerprint identification. When a person is arrested, 
they are not given an LID number. The only means to be certain to secure arrest information from the Mecklenburg County Court 
Services is with an LID number, which is associated with the fingerprint. 

105. Sheriff Brown had attempted to contact NCIC (National Crime Information System), which is a fingerprint 
identification national system. Nothing was returned from this organization mdicating that the Petitioner had been fingerprinted in 
Mecklenburg County. 

106. Major Hinson, by Petitioner's Exhibit #1. informed Ms. Loman of her personal inquiry and attempt to obtain 
current information on the Petitioner from agencies in Mecklenburg County. Major Hinson's notation on Respondent's Exhibit 
#17 reads as follows: "I have called both of these agencies and they could not find any record of Mr. Norris." Before writing the 
notation. Major Hinson actually telephoned the two agencies using the numbers that were circled on Respondent's Exhibit #17. 
She gave both agencies the information that was attached to Respondent's Exhibit #17 including, according to Major Hinson, the 
local ID number. Neither agency could find any record on Mr. Norris. Major Hinson telephoned these two agencies on at least 
three different occasions trying to secure the record that was disclosed to her as not having been listed by the Petitioner. On each 
one of these calls, she talked to numerous individuals in the different agencies and was switched around to various individuals 
within the agencies. In response to her inquiries, these agencies faxed various documents to her. all of which indicated that there 



14:4 NORTH CAROLINA REGISTER August 16, 1999 361 



CONTESTED CASE DECISIONS 



was no record for Petitioner. 

107. In Major Hinson's correspondence to Julia Loman of June 30. 1998, she writes the following: "We did not and 
do not recommend that Mr. Norris put any offenses on his Personal History Statement unless we can verify that he was actually 
ever charged." Major Hinson explained in her testimony that without specific information, it cannot be properly listed on the 
Respondent's form. As a matter of policy in the Onslow County Sheriffs Department, applicants are informed that if the 
information cannot be verified by the court records, then it cannot be accurately listed. Petitioner was so informed. 

108. Based upon the evidence before the Respondent and the Petitioner's response, the officials of the Respondent 
submitted the information to a Probable Cause Committee consisting of five members of the Respondent. Based upon the 
information available to them, the Respondent believed that there was probable cause to charge Petitioner with falsification of his 
application both in 1992 and in 1997. 

109. Even after Major Hinson received narrative information pertaining to an arrest record for the Petitioner in 
Respondent's possession, she was still unable to secure verification or duplication of the documents that were provided to the 
Respondent from the various Mecklenburg County agencies who had the records. 

1 10. Prior to appearing before the Respondent's probable cause hearing and again on the date of that hearing. Sheriff 
Brown, through his agents and employees, attempted to telephone officials in Mecklenburg County to learn whether an arrest 
record actually existed for the Petitioner in Mecklenburg County in 1992. Sheriff Brown was not informed by any official in 
Mecklenburg County as to an arrest record for the Petitioner. When Sheriff Brown arrived at the probable cause hearing, he was 
presented with evidence of the arrest for the first time by way of photographs and fingerprint records from 1991. Prior to the 
probable cause hearing. Sheriff Brown requested to have copies of the Respondent's information. Respondent denied him this 
request due to the pending litigation. 

111. Major Hinson informed Ms. Loman when the inquiry arose that the information in question had been disclosed 
to Sheriff Brown in 1992. 

1 12. Major Hinson, in her correspondence of June 30. 1998, to Respondent (Petitioner's Exhibit #1 ) indicated that 
the Petitioner had not been placed in jail. Major Hinson explained that she believed that Petitioner was actually never incarcerated 
in the Mecklenburg County Jail but only in a holding area. 

113. Major Hinson has been through Basic Law Enforcement Training where she learned the fundamentals of 
background investigations. Major Hinson also worked under Major Koontz prior to the Major's retirement and was trained by 
Major Koontz. 

1 14. Major Hinson had a conversation with the Petitioner as to the details of the events leading to his incarceration in 
1992. Petitioner did not recount to Major Hinson that Petitioner had been handcuffed, physically restrained, or fingerprinted or 
photographed. 

115. Major Hinson recounted that based upon her experience in criminal records checks that the type of arrest 
information suggested by Petitioner's circumstances is usually disclosed in the Criminal History Check. In Onslow County, this 
information is contained in the Onslow County Courthouse. Major Hinson has never had more difficulty in obtaining this type of 
record than in the Petitioner's circumstance and that this was the first lime that she was never able to procure such a record. 

116. By way of Respondent's Exhibit #16, Respondent officially notified Petitioner of the existence of the probable 
cause and they indicated the following; 

Probable cause exists to believe you are not in compliance with the aforementioned rules due to your failure to 
indicate in response to question #47 on two separate Personal History Statements (Form F-3). which you 
completed and had notarized on July 14. 1992 and June 24. 1997. respectively, that you had been arrested or 
otherwise criminally charged in Mecklenburg County on August 3, 1991 for the misdemeanor offense 
Resist/Obstruct a Public Officer and Second Degree Trespass. 

Based upon the above facts and the Commission's rules, probable cause exists to believe your certification 
should be revoked for a period of five years from the final date of revocation as specified in Rule .0203. 
However, no action to revoke your certification is being taken at this time in order to allow you the opportunity 
to request a hearing in this matter. 



362 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



117. On or about November 18. 1998, at the request of Major Hinson as to a criminal record for the Petitioner in the 
Mecklenburg County Clerk for that Clerk's Office returned a certification to Major Hinson with the following box marked with an 
"X": "No record was indexed by the name given above." (Petitioner's Exhibit #6) 

1 18. Major Hinson had spoken to Mr. Sloop on several occasions by telephone, the last of which was on 12/18/98. 
Mr. Sloop had prepared a memorandum and faxed it to Major Hinson (Petitioner's Exhibit #3). According to Major Hinson, at no 
time was she informed by Mr. Sloop or anyone else that there was a computer problem in Mecklenburg County. 

1 19. Major Hinson had secured from the attachments to Petitioner's Exhibit #5. Petitioner's Mecklenburg County 
Local ID number 157574. In her conversations with Mr. Sloop, Major Hinson testified that she always referred to that local ID 
number but the records tor Mr. Norris were never produced. Also, when Mecklenburg County could not produce any records 
under the local ID number. Major Hinson referred the agency to other ID numbers on Petitioner's Exhibit #5, none of which 
produced a copy of any record. 

120. One of the responses to Major Hinson was provided by Michael Sloop on 12-18-98 and is marked as Petitioner's 
Exhibit #3. Major Hinson testified that she had supplied the local ID number to Mr. Sloop. Even with the local ID number, Mr. 
Sloop's agency was not able to produce a record for Petitioner. 

121. Mr. Sloop, in his records, retained the original fax to Major Hinson on a blue post-it note which was retained by 
Mr. Sloop. The following infonnation is recorded: 1. His name; 2. Date of birth; 3. the charge; 4. Major Hinson's name and 
phone number. Mr. Sloop did not record on the blue post-it slip, (which is not in evidence), the local identification number. Mr. 
Sloop ordinarily would have included this local ID number because of its importance. 

122. Major Hinson. in advising applicants not to list charges unless they can be verified by records, was following a 
policy which was learned from Major Koontz. 

1 23. No one from the Respondent ever advised Major Hinson of a similar policy with the Respondent. Major Hinson 
is not aware of any similar policy incorporated in the Administrative Code. 

124. Petitioner graduated from basic law enforcement training two weeks prior to the date of the start of this 
contested case hearing. In basic law enforcement training, he was given basic information and some legal training in the legal 
definitions of arrests and charges. However. Petitioner did complete Basic Detention Officer School Courses where he took legal 
rights and responsibilities. 

125. Petitioner, as part of his standard coursework. taken as a prerequisite to certification, was instructed in the role 
and purpose of the Respondent. 

126. Sheriff Brown's employment assessment of Petitioner is that he is "a great employee." He is very bright but 
rather passive. His service as a Detention Officer in the jail of Onslow County was exemplary because of his ability to get along 
with the inmates. When the Petitioner reapplied the second time for a position with the Onslow County Sheriff's Department, 
Sheriff Brown had no hesitation to hire hmi. 

1 27. TTie undersigned has had the opportunity during the course of this hearing to view the credibility of each witness 
as he/she came to the witness stand. The undersigned obser\ed the Petitioner's manner, appearance and demeanor. The 
undersigned finds that the Petitioner's 

testimony is consistent with other believable evidence in the case and finds the Petitioner's testimony to be reasonable. belie\able 
and credible. 

128. TTie Petitioner did not knowingly and designedly by any means of false pretense, deception, defraudation, 
misrepresentation or cheating obtain or attempt to obtain credit, training or certification from the commission or the North 
Carolina Criminal Justice Education and Training Standards Commission. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction of this contested case pursuant to Chapter 1 7E and 1 50B 



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CONTESTED CASE DECISIONS 



of the North Carohna General Statutes. 

2. 12 N.C.A.C. lOB .()204(c)( 1 ) and (2) provides the Respondent may revoke, suspend, or deny the certification of 
a justice officer when the Commission finds that the applicant for certification or the certified officer; 

(1) has ivnowingly made a material misrepresentation of any information required for certification or 
accreditation from the Commission or the North Carohna Criminal Justice Education and Training 
Standards: or 

(2) has knowingly and designedly by any means of false pretense, deception, defraudation, 
misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training or 
certification from the Commission or the North Carolina Criminal Justice Education and Training 
Standards Commission. 

3. With respect to the Personal History Statement that the Petitioner prepared on July 14, 1992, any failure to 
disclose the facts surrounding the Petitioner's arrest in Charlotte, North Carolina on August 3, 1991, occurred through no 
affirmative misrepresentation by the Petitioner but through a misunderstanding of the facts and circumstances surrounding the 
Petitioner's arrest in Mecklenburg County as a result of a lack of understanding of the arrest process in Mecklenburg County and 
as a result of advice given to him by Sheriff Brown. The undersigned concludes that the Petitioner did not violate 12 N.C.A.C. 
lOB .0204(c)(1) and (2). 

4. With respect to the personal history statement that the Petitioner prepared on June 24. 1997. the Petitioner's 
failure to disclose the details of the August 3. 1991 arrest in Mecklenburg County, North Carolina occurred as a result of the 
Petitioner's misunderstanding of the facts and circumstances surrounding that arrest and as a result of the Petitioner's belief that 
an arrest did not occur at that time as a result of advice given to him by Sheriff Brown. The undersigned concludes the Petitioner 
did not violate 12 N.C.A.C. IDE .0204(c)(l ) and (2). 

5. TTie undersigned recognizes the importance to the Respondent of accurate information to be recorded in the 
application process as to criminal history, but under the circumstances, the undersigned cannot find that the Petitioners failure to 
disclose was either a material misrepresentation (omission) or a knowing misrepresentation (omission) made with the intent to 
deceive or defraud. 

6. The undersigned has reviewed the entire record and the conclusions of law applied herein are based upon the 
preponderance or the greater weight of the evidence in the whole record. 

7. Petitioner did not knowingly make a material misrepresentation. Knowingly is consciously and intentionally. 
This element of the offense may be satisfied only by actual knowledge on the part of the Petitioner. A mere mistake on the part of 
the Petitioner is not enough lo constitute knowledge. 

8. A material misrepresentation is one that is a substantive misrepresentation. By the fact that Respondent in 1997 
would not have considered Petitioner's misdemeanor record that was older than five years would make the omission of listing the 
offenses in 1997 immaterial. Had the Petitioner listed the offenses in 1997, it would have been beyond the five year period and, 
therefore, this omission is insubstantial. However, in the 1992 application, the failure to list the alleged misdemeanor arrest was 
material inasmuch as the Respondent had an interest by rule in investigating at least one of the misdemeanor offenses at its 
discretion. 

9. A misrepresentation must be definite and specific; an untrue statement of fact. Petitioner did not make a 
misrepresentation as he neither in 1992 or in 1997 made any affirmative statement as to the conditions surrounding his 
incarceration in 1 99 1 . In fact, in the 1 992 application. Petitioner left question #47 blank. Inasmuch as a material misrepresentation 
must be an affirmative statement, none was made by Petitioner in either of the Personal History Statements. The issue then 
becomes whether an omission under the allegations can be a material misrepresentation knowingly made? There is no duty to 
speak until such time as one possesses infonnalion and is certain as to that information. Tlie Petitioner did not omit or conceal a 
fact as he was justifiably uncertain as to the legal definitions of his arrest both in 1992 and 1997 as to whether the circumstances 
constituted an arrest. Further, Petitioner, based upon the advice and counsel of Sheriff Brown, believed that his incarceration was 
made pursuant to the "drunk assist" statute under the provisions of G.S. I22C-303. Petitioner was not aware in 1992 of what a 
"drunk assist" was and based upon a disclosure of the pertinent circumstances to Sheriff Brown and other Officials at the Onslow 
County Sheriffs Department, who assisted him with his employment application, neither believed thai Petitioner was arrested but 
rather detained as a "drunk assist." Petitioner neither made a misrepresentation or omission. 



364 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



10. Many factors in Petitioner's mind led to his uncertainty as to whether he had been arrested, some of which are as 
follows: he was not charged with a crime as there was no probable cause; he was not required to post bond; he was not required to 
appear in court; he was not required to pay a fine; he was not further detained but immediately released after appearing before the 
Magistrate; and he was provided no magistrate or jail documentation evidencing a legal confinement, arrest or charge or otherwise 
defining the events surrounding the morning of August 3. 1991, from which he could have legally determined his status on that 
occasion. Petitioner's uncertainty as to these events cannot constitute a misrepresentation or omission. 

11. In the 1997 application, the same factors prevailed except that he had received basic law enforcement training. 
No evidence was presented at this hearing as to the specific content of any course, text reference or what was learned by the 
Petitioner in connection with arrests. 

12. Respondent accepted the 1992 application and presumably conducted an independent check. Petitioner was 
justified in believing that because of the lack of a record of such event and his dependency upon the public records of 
Mecklenburg County (or lack thereof), that he had not been arrested but merely detained. Members of the public are entitled to 
rely on the existence or non-existence of public records or at least a presumption flowing from the existence or non-existence of 
public records when these individuals, or individuals acting on their behalf, actively search public records for the existence or non- 
existence of a record. The retention and availability of public records retained in the Register of Deeds Offices or the Clerk of 
Courts Offices are one of the major reasons that these offices exist. The public is entitled and should legally be entitled to rely 
upon these offices to accurately report, when requested, the existence or non-existence oi public records and documents. In the 
event that a public record does not disclose a legal arrest or charges, then a member of the public seeking that information, after a 
diligent search, should be able to rely on the lack of a record and not be forever adjudicated as one who has lied by deceit, fraud or 
misrepresentation for not disclosing information to which there is no discoverable record. The lack of a record should have 
created in the Petitioner's mind a presumption that the record and underlying arrest did not exist or occur, particularly in light of 
other relevant circumstances which would also justify a reasonable mind to believe that the event did not legally occur. Personnel 
in the Onslow County Sheriff's Department, acting on Petitioner's behalf in 1992 and again in 1998, actively searched the public 
records of Mecklenburg County and other agencies to secure a record. None was found. Petitioner was entitled to rely on the lack 
of a public record, particularly in light of other corroborating circumstances, to provide to him. at a minimum, a presumption that 
an arrest and charges did not exist. 

13. Petitioner completed both Personal History Statements, to the best of his knowledge and belief. If an error was 
made it was an "honest mistake." Not all mistakes rise to the level of lying, deceit and fraud just as all injurious conduct does not 
use to the level of negligence, intentional or culpable liability. There are legal standards that must be applied to distinguish legal 
misconduct from otherwise legal conduct. 

14. Placing a person in custody until sober under N.C.G.S. Sec. 122C-303 is not an arrest. State v^ Cooke , 49 
N.C App. 384, 271 S.E.2d561 (1980). 

15. The Petitioner did not knowingly make a material misrepresentation of any information required for certification 
or accreditation from the Commission or the North Carolina Criminal Justice Education and Training Standards Commission. 

16. Evidence of the lack of Petitioner's intent or scienter is evidenced by his full disclosure of the DUI arrest in the 
1997 Personal History Statement. This arrest and charge also occurred at a time when he was not in the employment of the 
Onslow County Sheriff's Department. In response to the Sheriff's question as to his interim arrest record. Petitioner fully 
disclosed the circumstances surrounding the DUI arrest and what was necessary for him to return to the employment of the 
Onslow County Sheriff's Department. This disclosure reflected the same or similar conduct on Petitioner's part in 1992 when the 
Sheriff asked him about his criminal conduct and behavior wherein he disclosed the circumstances to the best of his knowledge 
and belief as to what happened in Mecklenburg County in 1991. The inclusion of the arrest for DUI in 1997 is evidence of a 
contrary intent from concealment and evidences an intent on the part of the Petitioner to disclose potentially embarrassing 
information. The Petitioner's attributable reason for not disclosing the incident in 1992 was presumptively embarrassment. Had 
embarrassment been a motive. Petitioner had the identical incentive not to disclose the DUI arrest in 1997 and yet he did. 

17. Petitioner could also rely on the Respondent's inaction to his 1992 application. By mistake or inadvertence. 
Petitioner left question #47 blank on the 1992 Personal History Statement. Petitioner could assume that Respondent was not 
concerned with the completed question #47 or that Respondent's own criminal history check confirmed that there was not an arrest 
record concerning Petitioner in Mecklenburg County in 1992. The Respondent's failure to return the incomplete questionnaire to 
either the Petitioner or the Onslow County Sheriff's Department evidences an acceptance of Petitioner's incomplete application 
and that Respt)ndent did not justiflably rely on the omission (a key element ot fraud). The Respondent's "mistake" could have led 



14:4 NORTH CAROLINA REGISTER August 16, 1999 365 



CONTESTED CASE DECISIONS 



Petitioner to believe thiat his application was a least complete in 1992. In fact. Respondent's certification documents find 
specifically that a proper application has been submitted . 

1 8. Petitioner was intoxicated at all relevant times. Because of Petitioner's intoxication, he did not recall the events 
with such clarity as to even know the facts to apply to a legal conclusion about an arrest or charge. To what degree is Petitioner's 
level of intoxication relevant to the element of an intent to deceive Respondent? Petitioner's statement as to the Petitioner's level 
of intoxication indicates that Petitioner was extremely intoxicated. Respondent's evidence through Deputy Rushing indicates a 
possible lesser degree of intoxication, but all of the evidence agrees that on the night in question the Petitioner was intoxicated. 
Petitioner's testimony lends credence to a level of intoxication that could have led to a blackout of memory as to the details of the 
events of August 3, 1991. The evidence is inconclusive on this point but certainly goes to the question of the Petitioner's intent to 
conceal relevant information. The delay in fingerprinting and photographing Petitioner on August 3, 1991, indicates a level of 
intoxication, which could be explained by disruptive behavior or give rise to an assumption of extreme intoxication as testified to 
by the Petitioner, who was found to be credible. The lack of memory of the events on the part of Petitioner negates a finding of 
intent to deceive or conceal a material fact. The undersigned concludes that the Petitioner's ability to clearly recall the events of 
August 3, 1991, are greatly placed in question and to a degree are attributable to his level of intoxication. The Petitioner cannot 
disclose what he does not recall. He really had no other source of information outside of the criminal records in which to provide 
the details of what occurred outside the nightclub on that night. 

19. To the degree that the evidence indicates that Sheriff Brown's or Major Hinson's veracity were brought into 
question, I specifically find that both Sheriff Brown and Major Hinson testified truthfully in this hearing. 

20. Petitioner, on the night of August 3, 1991, was arrested by Officer Rushing. 

21 . Respondent's Exhibit #13 evidences a public record in Mecklenburg County Court Services Department, which 
indicates that the Petitioner was charged with Second Degree Trespass and Resisting/Obstructing a Public Officer on the night of 
August 3, 1991. The same record indicates that there was no probable cause for either of the charges found by the Magistrate. 
Further, according to the document, the transporting officer was R.A. Gidley. There is no evidence that either Deputy Rushing or 
Officer Gidley had a warrant or themselves issued a written citation. Petitioner's testimony was that he was given no 
documentation of an arrest or charge. This evidence is credible. Inasmuch as the best record of the charge would be 
documentation of a warrant, citation or some other paper writing indicating the charge, then the business record produced 
incorrectly reflects what occurred or is incorrect as a matter of law. TTie undersigned concludes that the Petitioner, on the morning 
of August 3, 1 99 1 , was not formally charged as there was no documentation handed to the Petitioner of these charges. Further, the 
undersigned finds that Petitioner was released later in the day of August 3, 1991, with a finding of no probable cause by a 
magistrate which is a prerequisite to the existence of a formal or legal charge. Therefore, Petitit)ner was not required to list these 
charges on either of Respondent's applications. 

22. "Knowingly" means willfully, intentionally and consciously. "Designedly" means on purpose or intentionalh. 
"False pretense" means a designed misrepresentation of existing fact. "Deception" means an intentional misleading by falsehood. 
"Defraudation" means privation (a taking away or withholding) by fraud. "Misrepresentation" means an intentional false 
statement. "Cheating" means defrauding. Under any of the foregoing definitions, the Petitioner has not, under the facts of this 
case, committed any of the violations as contained in 12 NCAC lOB .0204(c)(2). 

23. Petitioner has not knowingly violated 12 NCAC lOB .0204(c)( 1 ) per the above definition. 

24. Notwithstanding any sanction that the Respondent in its final decision might issue against this Petitioner (which 
would likely under the circumstances of this case be minor given the circumstances of this case), the undersigned concluded that 
the greatest sanction of all would be a finding by Respondent concerning this Petitioner's lack of character for truthfulness in a 
official application to Respondent. In the event that this Petitioner retains his certification with such a final adjudication on his 
record and were he to be subsequently involved in a criminal proceeding where his credibility would be placed into issue, then a 
finding that this Peiilioner had knowingly lied by means of false pretense, deception, defraudation, misrepresentation or cheating, 
could he a finding that could be used in a future criminal prosecution under the Rules of Evidence [ostensibly Rule 608(b)] to 
permit inquir\ into specific acts of misconduct sufficient to impeach his credibility as a future witness. Among the types of 
conduct most widely accepted as falling into this category are use of false identity, making false statements on affidavits, 
applications or government forms (including tax returns), giving false testimony, attempting to corrupt or cheat others, and 
attcmptmg to deceive or defraud others. See State v. Morgan. 315 NC 626, 34 SE2d 84 (1986). 

Based upon the foregoing Stipulations. Findings of Fact and Conclusions of Law the undersigned makes the following: 



366 NORTH CAROLINA REGISTER August 16, 1999 14:4 



CONTESTED CASE DECISIONS 



PROPOSAL FOR DECISION 

That the Petitioner shall retain his present law enforcement certification and that the Respondent shall take no action 
against the Petitioner to revoke said certification or otherwise sanction Petitioner or adjudicate Petitioner as a wrongdoer for 
violation of Respondent's rules. 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
and proposed findings of fact and to present oral and written arguments to the agency. N.C.G.S. § 150B-4()(e). 

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to 
the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. N.C.G.S. § 
150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Criininal Justice Education and 
Training Standards Commission. 

This the 29'" day of July. 1999. 



Julian Mann. Ill 

Chief Administrative Law Judge 



14:4 NORTH CAROLINA REGISTER August 16, 1999 367 



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